The Family Relations Act of B.C. is to be repealed in 2012. There are more common law relationships than marriages in BC and common law relationships tend to end sooner than marriages. Often, common law couples are sensible about maintaining separate property. It is the longer-term common law relationships in which the couple have intermingled finances and assets that are the focus of some major changes to the family law. Common law couples will gain some rights in property after a two-year anniversary date and sooner if they have a child together. The value of propery brought into the relationship is excluded from being shared. In current B.C. family law, one is better protected by having no cohabitation agreement. This advice will change when the new Act is in effect. Common law couples will be better off, and base advised, to have even a simple written agreement, witnessed and dated by two independant adult witness. The litmus test for enforcablity of an Agreement will be legality, fairness, and full financial disclosure. Upcoming area of law: full disclosure of medical issues that can impact the relationship and, if known, might reasonably be forseen as impacting the decion to enter the agreement. COMON LAW COUPLES: GET YOUR LEGAL AFFAIRS IN ORDER - GET A COHABITATION AGREEMENT.
Restraining orders: danger, danger: exercise extreme caution! The BC Supreme Court in Budreau v. Laird, 2008 BCSC 425 defines and limits the use of personal restraining orders in B.C. family law cases. This is a useful decision in that it provides a deterrent against the improper application of section 37 of the FRA by litigants who are apprehensive or uneasy about their former spouse’s communications or contact. Restraining orders have their use and are needed when the parties require a “cooling off” period with any direct or indirect contact between them as tempers run over the boiling point.
Section 37 of the FRA contains its own legal threshold test. The court has to be satisfied on a balance of probabilities that there is reason to conclude on the facts that one party is unduly “molesting, annoying, harassing, . . .” the other party. Per this legal test, the impugned conduct is demonstrated (in affidavit evidence) to be extreme and beyond the norm for newly-separated spouses with infant children.
Restraining orders can cause a case with good settlement prospects to reverse into a high conflict case in, for example, cases in which the restraining order is not required but is obtained on either false grounds or very low threshold facts. The point at which the restraining order is made can be the point of no return: the restrained party (assuming restrained without real justification) feels huge insult and betrayal, resulting in further reducing levels of trust between spouses.
Restraining orders can tip the child custodial balance in favour of the spouse who has the children if that spouse also has a “no contact” order under section 37 FRA: that spouse can rely on the “no contact” order to deny access with near impunity when there is no court order specifying the children’s access schedule with the other parent who cannot make contact to arrange access. The situation gives the non-restrained parent much leeway and leverage that is not the intended result of section 37 FRA.
