BC Ministry of Attorney General seeking comments on reform of property division and spousal support under the Family Law Act
July 26, 2022
BY Kevin Zakreski
As part of an ongoing project to review and update the Family Law Act, the Ministry of Attorney General for BC has published a discussion paper on property division (part 5 of the act) and spousal support (part 7, division 4). The Family Law Act Modernization project webpage contains links to a survey, backgrounder, and full technical discussion paper.
As the discussion paper explains, the advent of the Family Law Act in 2013 introduced a new approach to property division. Since that time, “the courts of British Columbia have grappled with how to interpret the new provisions,” which has led to new issues emerging that could be addressed through amended legislation.
While “the FLA made few changes to spousal support law, there are areas that may benefit from clarity.” The discussion paper highlights these areas.
The discussion paper sets out 20 issues for discussion that seek to elicit experiences in applying the new act and views on reform. The issues addressed include the following areas:
Division of property issues
Identification and treatment of excluded property
- application of tracing methods—should specific methods be spelled out in the act or should this be left to the courts to deal with case by case?
- evidentiary presumptions—should the FLA expressly abolish or apply the presumption of advancement to transfers between spouses?
Unequal division of family property
- significant unfairness—are the factors spelled out in section 95 adequate?
- significant unfairness—is section 95’s catch-all provision creating uncertainty and, if so, should it be repealed?
Addressing unique types of property
- trusts—clarifying when a property held in trust is valued
- pets—does part 5 adequately address issues concerning pets or should it be reformed to address pets separately from family property?
Summary of division of property
- should the list in section 84 be revised to add new types of property (e.g., cryptocurrencies)?
- is the list of excluded property in section 85 adequate?
Spousal support issues
Reviews and variations
- should the FLA be amended to clarify the differences between variations and reviews?
Retroactive spousal support
- is the courts’ analysis of claims involving retroactive spousal support and retroactive child support becoming blurred?
- is there an imbalance between retroactive spousal support claims by payors and recipients?
Issues with specific spousal relationships
Multiple separations and blended families
- should the FLA be amended to address issues (concerning either division of property or spousal support) that are specifically related to multiple separations or blended families?
Predatory relationships
- should the FLA be amended to provide greater protections against predatory relationships?
The deadline for comments is 9 September 2022.
