Family Law includes both federal legislation like the Divorce Act and provincial legislation like the Family Relations Act.
Currently the British Columbia provincial legislation governing family separations is the revised but old 1978 Family Relations Act. In the current legislation the legal terms applied by the BC Family Court to decide the legal rights regarding children include guardianship, custody and access - which have caused an approach that the rights of parents are being determined rather than the rights of the child.
Under the current BC law, property rights are different for common law couples and legally married couples. For married couples the starting point is an equal division of family assets then the arguments start for reapportionment - to have more or less than 50% allocated to each spouse. Instead a common law spouse has to make a trust claim for reimbursement of any unjust enrichment.
After years of consultations as well as the experience of decades of case law, with parents fighting over control and power using words like custody as if one owned a child, a new Family Law Act was passed in 2011 and we now wait for it to be declared the applicable family law in British Columbia. PLEASE NOTE - in June 2012 the new Act is NOT yet law but many experienced family lawyers are already advising clients how the view of the court is changing to the shared parenting view which better reflects a Child First approach to post separation parenting.
An easy to read summary of the changes coming are provided by the BC Attorney General family law web page. The major differences include a change of view from parental rights to parental obligations and responsibilities and Child First rights. Changes include the definition of SPOUSE in the new Act, and new property law terms will cover both common law and married spouses, including the new starting point for both kinds of spouses will be a sharing of family debts as well as family assets. The definition of family assets are also defined by excluding certain assets from being shared - like inheritances.
I will write separate blogs about different specific changes in the new Family Law Act.
Another major change coming in the new Family Law Act is the emphasis on the out of court settlement options such as mediation. I am a strong supporter of an out of court process such as mediation when children are involved since the parents must work together for years if their children are going to grow up as happy as possible. A mediator does NOT make any decision - the mediator helps the parents make any decisions so there is no risk to try mediation before going to trial since no decision will be made if you do not agree. It has been my experience over the decades that any family with children is much better off solving at least some of concerns and issues using mediation. Often many of my clients are very pessimistic about mediation having any success and most are pleasantly surprised by how much is achieved - thus reducing huge amounts of emotion and stress and legal fees for bitter court battles no longer needed.
Our law firm accepts legal aid referrals, as well as offer one time meetings for second opinions or independent legal advice (``ÌLA``) in addition to the normal private retainer to help solve family law issues.
If you think you qualify for legal aid just ask the legal aid intake worker to fax us a family law referral.
If you have a family law issue but do not qualfy for legal aid then contact us for a mutually convenient appointment whether for a one time ILA or for a normal retainer of our services.
If you are uncertain about what to do next, we also accept CBA referrals.