Our communities are completely unaware of the fact that as of March 18, 2013, common law partners will be treated the same as married partners, if they break up. And that means: 50% of the family property and 50% of the family debt to each of you! Read on...you can choose to opt out if you want to...
Who Gets What When?
Division of Property on Breakup of a Marriage or Common Law Relationship under the Family Law Act
The Family Law Act comes into force in B.C. on March 18, 2013. This pamphlet talks about what your situation will be if you break up after March 18, 2013.
(If you broke up before March 18, 2013, the old law, the Family Relations Act, applies to your situation).
Who Does the Law Apply To?
The Family Law Act applies to all married couples; and it applies to unmarried couples who have lived together for two years or more. It applies to heterosexual couples, same sex couples, and couples with one or two trans members.
Who Does the Law Not Apply To?
Any couple can contract out of the Family Law Act. That means that the two of you can create your own agreement about how finances will work during your relationship, and how you will divide property if the relationship ends. So, reading through the rest of this pamphlet, bear in mind that if you don’t like the way the law would apply to your situation, you can create your own contract. Then the Family Law Act does not apply.
When Does the Law Kick In?
The law takes effect as soon as the two of you separate.
Who Gets What if We Break Up?
At the moment of separation, each spouse is entitled to a half interest in all “family property”, and is responsible for one half of “family debt”. It doesn’t matter who contributed what to the purchase of the property, or whose name the property or the debt is in.
So what counts as “family property” and “family debt”?
A thumbnail: what you owned, or what you owed, before you got together, is yours. But whatever property, and whatever debt, either of you acquired after you got together, is divided between you 50/50. Certain types of property are excluded.
Now for the details (and the devil is always in the details).
The way the Family Law Act sets it up, unless there is a specific exemption, family property is all real property (real estate) and personal property (money and things) owned by at least one spouse or in which at least one spouse has a beneficial interest on the date of separation. We’ll get to the exemptions in a minute.
The Family Law Act specifies some things which definitely are “family property”, including:
- a share or an interest in a corporation;
- an interest in a partnership, an association, an organization, a business or a venture;
- property owing to a spouse:
- as a refund, including an income tax refund, or
- in return for the provision of a good or service;
- money of a spouse in an account with a financial institution;
- a spouse’s entitlement under an annuity, a pension, a retirement savings plan or an income plan;
- property, (other than certain trust property), that a spouse disposes of after the relationship between the spouses began, but over which the spouse retains authority, to be exercised alone or with another person, to require its return or to direct its use or further disposition in any way;
- the amount by which the value of excluded property has increased since the later of the date:
- the relationship between the spouses began, or
- the excluded property was acquired.
So what is NOT family property?
The Family Law Act sets out a list of what is not family property:
Since property acquired before the relationship began belongs to that spouse, whereas the same property purchased by that spouse after the relationship began can be divided 50/50, it will be important – and sometimes difficult – to know when the relationship began and what the value of the property was at that time.
- property acquired by a spouse before the relationship between the spouses began;
- gifts or inheritances to a spouse;
- a settlement or an award of damages to a spouse as compensation for injury or loss, unless the settlement or award represents compensation for:
- loss to both spouses, or
- lost income of a spouse;
- money paid or payable under an insurance policy, other than a policy respecting property, except any portion that represents compensation for:
- loss to both spouses, or
- lost income of a spouse;
- property referred to above that is held in trust for the benefit of a spouse;
- property held in a discretionary trust:
- to which the spouse did not contribute;
- of which the spouse is a beneficiary; and
- that is settled by a person other than the spouse;
- property derived from property or the disposition of property referred to above.
The onus is on you if you want to argue that a particular property is not a family property.
Some Examples, Please?
What about a business that I bought before the relationship, and operated as a sole proprietor during the relationship? The business was worth $100,000 when we married ten years ago. Now it is worth $150,000:
Because you bought the business before the relationship began, the first $100,000 is yours. But the $50,000 increase in value is a family property and will be divided 50/50. As the owning partner you would get $100,000 + $25,000 = $125,000; your spouse would get $25,000.
An investment I owned before we got together and have never used during the relationship:
Not a family property. But if it earns income, the income is a family property and is divided 50/50.
Property one spouse bought and paid for during the relationship :
I’m a doctor. When we got together I had $38,000 in student loans. I racked up another $20,000 in student loans for the first two years we were married. Then I established a family practice, which is incorporated: the name of my company is Dr. Nolan Finefeather Ltd. I take a draw from the corporation which is the source of my income.
Your professional corporation is a family property since you set it up after you got together.
You are responsible for the first $38,000 of the debt; but the balance is divided 50/50.
Property bought with equal contributions from both spouses, after getting together, but in the name of one partner:
Property bought with unequal contributions – say 90/10 – and put in joint names after the relationship began:
Disability insurance policy:
Disability insurance from work may be a family property.
Property owned in both names:
The important thing is not whose name it is in, but when it was purchased. If it was bought before the relationship began, then each owns the original value of their contribution; but the increase in value after the relationship began is divided 50/50.
Property one of us bought before we got together:
Not family property; but any increase in value after you got together is family property.
I owned a cottage before we got together. It was worth $150,000 when I bought it, and $200,000 when the relationship started. I sold it for $300,000 two years after the relationship began, and bought another property for $300,000:
The new cottage continues to be your separate property and is not subject to 50/50 division even though it was bought after the relationship began, because the property was bought in substitution for an excluded property.
Property one of us bought before we got together, sold, and bought another property:
Home we live in:
There are no special rules for the family home.
Who bought it? Before or after the relationship began? If before, it is excluded, but the increase in value will be shared. Note that it may not be possible to divide the family home if it is located on a First Nations reserve. Talk to a lawyer.
Here’s how the Family Law Act deals with debt:
Family debt includes all financial obligations incurred by a spouse:
(a) during the period beginning when the relationship between the spouses begins and ending when the spouses separate, and
(b) after the date of separation, if incurred for the purpose of maintaining family property.
When you separate, each of you is responsible for one half of the family debt. And you continue to be responsible for one half of the debt (a mortgage for example) after separation, if the purpose of the debt is to maintain a family property.
So: take note! You can be held 50% responsible for debt – credit card debt, for example, - that you knew nothing about.
Can a Judge Make a Different Division than 50/50?
Yes, but only in very limited circumstances. Before a judge can intervene, the law says that it must be “significantly unfair” to divide it equally. This is a very strict test and we can expect that a court will not often divide family property other than 50/50.
If you ask the judge to make a different division than 50/50, the factors a judge can take into account in making that decision include:
In addition to those factors, a court can also consider the extent to which the financial means and earning capacity of a spouse have been affected by the responsibilities and other circumstances of the relationship between the parties.
- how long you have been together;
- the terms of any agreement you have made between you
- a spouse’s contribution to the career or career potential of the other spouse;
- whether family debt was incurred in the normal course of the relationship between the spouses;
- if the amount of family debt exceeds the value of family property, the ability of each spouse to pay a share of the family debt;
- whether a spouse, after the date of separation, caused a significant decrease or increase in the value of family property or family debt beyond market trends;
- the fact that a spouse, other than a spouse acting in good faith:
- substantially reduced the value of family property, or
- disposed of, transferred or converted property that is or would have been family property, or exchanged property that is or would have been family property into another form, causing the other spouse’s interest in the property or family property to be defeated or adversely affected;
- a tax liability that may be incurred by a spouse as a result of a transfer or sale of property or as a result of an order;
- any other factor, other than the consideration referred to in subsection (3), that may lead to significant unfairness.
Even though the calculation of the 50/50 share is only on those properties which are family property, and not excluded property, a judge can order that excluded property be divided between the parties in some circumstances, for example where a family property or debt located outside B.C. cannot be divided; or if it would be unfair not to divide the excluded property given how long the couple was together and what contributions each of them made to the preservation, maintenance, improvement, operation or management of the excluded property.
The Take-Home Messages
1. Opt Out
The Family Law Act is an “opt-out” regime.
If you don’t like the idea of having the property you acquire during the relationship being divided 50/50 when you break up, or you don’t like the idea of being responsible for 50% of the debt of someone whose spending habits are far different than yours, then…write an agreement. You are allowed to create an agreement that says that you will NOT be bound by the rules in the Family Law Act, and you can specify exactly who will get what if you separate. If you have such an agreement, it takes precedence over the Family Law Act rules.
If you do not have such an agreement, you will have to take it as it lays under the Family Law Act, if you ever separate.
2. Keep Records
If you break up, you may find yourself having to establish the value of a property you acquired before the relationship began, as of the date the relationship began. Don’t throw out any financial records, no matter how old (in fact, especially if they are old).
This article contains legal information. It is not legal advice. For advice about your specific situation, consult barbara findlay QC or another lawyer.
Current to March 18, 2013
© barbara findlay QC
635-1033 Davie Street
Vancouver, British Columbia V6E 1M7
T 604 251-4356
F 604 251-4373
Feel free to reproduce this booklet provided that you credit the author, include this information block, and do not charge for it.
The state of Kansas is suing a sperm donor for repayment of welfare paid to the child's mother, even the child's lesbian comothers had a written agreement with the sperm donor relieving him of financial responsibility for the child.
The State is arguing that there are technical issues with the way the agreement was created which make the agreement void.
This scenario is one of the worst fears of both sperm donors, and the lesbian comothers who are inseminated with sperm from a donor.
The current law in BC could be interpreted in a way that would make this action available to the government of B.C. However, as of March 18, 2013, the new Family Law Act will specify that a man does NOT become a parent simply by virtue of donating sperm. This in turn would mean he could never be liable for child support.
For the full story, see the Huffington Post article: http://www.huffingtonpost.com/2012/12/30/kansas-sperm-donor_n_2382677.html?utm_hp_ref=politics
This was forwarded to my by my Wet'suwet'en sister, Theresa Tait-Day
Harper Launches Major First Nations Termination Plan http://intercontinentalcry.org/harper-launches-major-first-nations-termination-plan-as-negotiating-tables-legitimize-canadas-colonialism/
Harper Launches Major First Nations Termination Plan: As Negotiating Tables Legitimize Canada's Colonialism
By Russell Diabo Nov 9, 2012
On September 4th the Harper government clearly signaled its intention to:
1) Focus all its efforts to assimilate First Nations into the existing federal and provincial orders of government of Canada;
2) Terminate the constitutionally protected and internationally recognized Inherent, Aboriginal and Treaty rights of First Nations.
Termination in this context means the ending of First Nations pre-existing sovereign status through federal coercion of First Nations into Land Claims and Self-Government Final Agreements that convert First Nations into municipalities, their reserves into fee simple lands and extinguishment of their Inherent, Aboriginal and Treaty Rights.
To do this the Harper government announced three new policy measures:
A "results based" approach to negotiating Modern Treaties and Self-Government Agreements. This is an assessment process of 93 negotiation tables across Canada to determine who will and who won't agree to terminate Inherent, Aboriginal and Treaty rights under the terms of Canada's Comprehensive Claims and Self-Government policies. For those tables who won't agree, negotiations will end as the federal government withdraws from the table and takes funding with them.
First Nation regional and national political organizations will have their core funding cut and capped. For regional First Nation political organizations the core funding will be capped at $500,000 annually. For some regional organizations this will result in a funding cut of $1 million or more annually. This will restrict the ability of Chiefs and Executives of Provincial Territorial organization's to organize and/or advocate for First Nations rights and interests.
First Nation Band and Tribal Council funding for advisory services will be eliminated over the next two years further crippling the ability of Chiefs and Councils and Tribal Council executives to analyze and assess the impacts of federal and provincial policies and legislation on Inherent, Aboriginal and Treaty rights.
These three new policy measures are on top of the following unilateral federal legislation the Harper government is imposing over First Nations:
- Bill C-27: First Nations Financial Transparency Act
- Bill C-45: Jobs and Growth Act, 2012 [Omnibus Bill includes Indian Act amendments regarding voting on-reserve lands surrenders/designations]
- Bill S-2: Family Homes on Reserves and Matrimonial Interests or Rights Act
- Bill S-6: First Nations Elections Act
- Bill S-8: Safe Drinking Water for First Nations
- Bill C-428: Indian Act Amendment and Replacement Act [Private Conservative MP's Bill, but supported by Harper government]
Then there are the Senate Public Bills:
- Bill S-207: An Act to amend the Interpretation Act (non derogation of aboriginal and treaty rights)
- Bill S-212: First Nations Self-Government Recognition Bill
The Harper government's Bills listed above are designed to undermine the collective rights of First Nations by focusing on individual rights. This is the "modern legislative framework" the Conservatives promised in 2006. The 2006 Conservative Platform promised to:
Replace the Indian Act (and related legislation) with a modern legislative framework which provides for the devolution of full legal and democratic responsibility to aboriginal Canadians for their own affairs within the Constitution, including the Charter of Rights and Freedoms.
Of course "modern" in Conservative terms means assimilation of First Nations by termination of their collective rights and off-loading federal responsibilities onto the First Nations themselves and the provinces.
One Bill that hasn't been introduced into Parliament yet, but is still expected, is the First Nations' Private Ownership Act (FNPOA). This private property concept for Indian Reserveswhich has been peddled by the likes of Tom Flanagan and tax proponent and former Kamloops Chief Manny Julesis also a core plank of the Harper government's 2006 electoral platform.
The 2006 Conservative Aboriginal Platform promised that if elected a Harper government would:
Support the development of individual property ownership on reserves, to encourage lending for private housing and businesses.
The long-term goals set out in the Harper government's policy and legislative initiatives listed above are not new; they are at least as old as the Indian Act and were articulated in the federal 1969 White Paper on Indian Policy, which set out a plan to terminate Indian rights as the time.
Previous Termination Plans: 1969 White Paper & Buffalo Jump of 1980's
The objectives of the 1969 White Paper on Indian Policy were to:
- Assimilate First Nations.
- Remove legislative recognition.
- Neutralize constitutional status.
- Impose taxation.
- Encourage provincial encroachment.
- Eliminate Reserve lands & extinguish Aboriginal Title.
- Economically underdevelop communities.
- Dismantle Treaties.
As First Nations galvanized across Canada to fight the Trudeau Liberal government's proposed 1969 termination policy the federal government was forced to consider a strategy on how to calm the Indian storm of protest.
In a memo dated April 1, 1970, David Munro, an Assistant Deputy Minister of Indian Affairs on Indian Consultation and Negotiations, advised his political masters Jean Chrétien and Pierre Trudeau, as follows:
. . . in our definition of objectives and goals, not only as they appear in formal documents, but also as stated or even implied in informal memoranda, draft planning papers, or causal conversation. We must stop talking about having the objective or goal of phasing out in five years. . . We can still believe with just as much strength and sincerity that the [White Paper] policies we propose are the right ones. . .
The final [White Paper] proposal, which is for the elimination of special status in legislation, must be relegated far into the future. . . my conclusion is that we need not change the [White Paper] policy content, but we should put varying degrees of emphasis on its several components and we should try to discuss it in terms of its components rather than as a whole. . . we should adopt somewhat different tactics in relation to [the White Paper] policy, but that we should not depart from its essential content. (Emphasis added)
In the early 1970's, the Trudeau Liberal government did back down publicly on implementing the 1969 White Paper on Indian Policy, but as we can see from Mr. Munro's advice the federal bureaucracy changed the timeline from five years to a long-term implementation of the 1969 White Paper objectives of assimilation/termination.
In the mid-1980's the Mulroney Conservative government resurrected the elements of the 1969 White Paper on Indian Policy, through a Cabinet memo.
In 1985, a secret federal Cabinet submission was leaked to the media by a DIAND employee. The Report was nicknamed the "Buffalo Jump of the 1980's" by another federal official. The nickname referred to the effect of the recommendations in the secret Cabinet document, which if adopted, would lead Status Indians to a cultural death -- hence the metaphor.
The Buffalo Jump Report proposed a management approach for First Nations policy and programs, which had the following intent:
- Limiting & eventually terminating the federal trust obligations;
- Reducing federal expenditures for First Nations, under funding programs, and prohibiting deficit financing;
- Shifting responsibility and costs for First Nations services to provinces and "advanced bands" through co-management, tri-partite, and community self-government agreements;
- "Downsizing" of the Department of Indian Affairs and Northern Development (DIAND) through a devolution of program administration to "advanced bands" and transfer of programs to other federal departments;
- Negotiating municipal community self-government agreements with First Nations which would result in the First Nation government giving up their Constitutional status as a sovereign government and becoming a municipality subject to provincial or territorial laws;
- Extinguishing aboriginal title and rights in exchange for fee simple title under provincial or territorial law while giving the province or territory underlying title to First Nations lands.
The Mulroney government's "Buffalo Jump" plan was temporarily derailed due the 1990 "Oka Crisis". Mulroney responded to the "Oka Crisis" with his "Four Pillars" of Native Policy:
- Accelerating the settlement of land claims;
- Improving the economic and social conditions on Reserves;
- Strengthening the relationships between Aboriginal Peoples and governments;
- Examining the concerns of Canada's Aboriginal Peoples in contemporary Canadian life.
In 1991, Prime Minister Brian Mulroney also announced the establishment of a Royal Commission on Aboriginal Peoples, which began its work later that year; the establishment of an Indian Claims Commission to review Specific Claims; the establishment of a BC Task Force on Claims, which would form the basis for the BC Treaty Commission Process.
In 1992, Aboriginal organizations and the federal government agreed, as part of the 1992 Charlottetown Accord, on amendments to the Constitution Act, 1982 that would have included recognition of the inherent right of self-government for Aboriginal people. For the first time, Aboriginal organizations had been full participants in the talks; however, the Accord was rejected in a national referendum.
With the failure of Canadian constitutional reform in 1992, for the last twenty years, the federal governmentwhether Liberal or Conservativehas continued to develop policies and legislation based upon the White Paper/Buffalo Jump objectives and many First Nations have regrettably agreed to compromise their constitutional/international rights by negotiating under Canada's termination policies.
Canada's Termination Policies Legitimized by Negotiation Tables
It has been thirty years since Aboriginal and Treaty rights have been "recognized and affirmed" in section 35 of Canada's constitution. Why hasn't the constitutional protection for First Nations' Inherent, Aboriginal and Treaty rights been implemented on the ground?
One answer to this question is, following the failure of the First Ministers' Conferences on Aboriginal Matters in the 1980's, many First Nations agreed to compromise their section 35 Inherent, Aboriginal and Treaty rights by entering into or negotiating Modern Treaties and/or Self-government Agreements under Canada's unilateral negotiation terms.
These Modern Treaties and Self-Government Agreements not only contribute to emptying out section 35 of Canada's constitution of any significant legal, political or economic meaning. Final settlement agreements are then used as precedents against other First Nations' who are negotiating.
Moreover, Canada's Land Claims and Self-Government policies are far below the international standards set out in the Articles of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Canada publicly endorsed the UNDRIP in November 2010, but obviously Canada's interpretation of the UNDRIP is different than that of most First Nations, considering their unilateral legislation and policy approach.
Canada's voted against UNDRIP on Sept. 13, 2007, stating that the UNDRIP was inconsistent with Canada's domestic policies, especially the Articles dealing with Indigenous Peoples' Self-Determination, Land Rights and Free, Prior Informed Consent.
Canada's position on UNDRIP now is that they can interpret it as they please, although the principles in UNDRIP form part of international not domestic law.
The federal strategy is to maintain the Indian Act (with amendments) as the main federal law to control and manage First Nations. The only way out of the Indian Act for First Nations is to negotiate an agreement under Canada's one-sided Land Claims and/or Self-Government policies. These Land Claims/Self-Government Agreements all require the termination of Indigenous rights for some land, cash and delegated jurisdiction under the existing federal and provincial orders of government.
Canada has deemed that it will not recognize the pre-existing sovereignty of First Nations or allow for a distinct First Nations order of government based upon section 35 of Canada's constitution.
Through blackmail, bribery or force, Canada is using the poverty of First Nations to obtain concessions from First Nations who want out of the Indian Act by way of Land Claims/Self- Government Agreements. All of these Agreements conform to Canada's interpretation of section 35 of Canada's constitution, which is to legally, politically and economically convert First Nations into what are essentially ethnic municipalities.
The first groups in Canada who have agreed to compromise their section 35 Inherent and Aboriginal rights through Modern Treaties have created an organization called the Land Claims Agreement Coalition. The Coalition Members are:
Council of Yukon First Nations (representing 9 land claim organizations in the Yukon)
Grand Council of the Crees (Eeyou Istchee)
Gwich'in Tribal Council
Inuvialuit Regional Corporation
Kwanlin Dun First Nation
Maa-nulth First Nations
Naskapi Nation of Kawawachikamach
Nunavut Tunngavik Inc.
Sahtu Secretariat Inc.
Tsawwassen First Nation
Vuntut Gwitchin First Nation
The Land Claims Agreement Coalition Members came together because the federal government wasn't properly implementing any of their Modern Treaties. So the Coalition essentially became a lobby group to collectively pressure the federal government to respect their Modern Treaties. According to Members of the Coalition Modern Treaty implementation problems persist today.
The fact that Canada has already broken the Modern Treaties shouldn't inspire confidence for those First Nations who are already lined up at Canada's Comprehensive Claims and Self-Government negotiation tables.
According to the federal Department of Aboriginal Affairs there are 93 Modern Treaty and/or Self-Government negotiation tables across Canada [http://www.aadncaandc.gc.ca/eng/1346782327802/1346782485058].
Those First Nations who are negotiating at these 93 tables are being used by the federal government (and the provinces/Territories) to legitimize its Comprehensive Claims and Self-Government policies, which are based upon extinguishment of Aboriginal Title and termination of Inherent, Aboriginal and Treaty rights.
The First Nations who have been refusing to negotiate and are resisting the federal Comprehensive Claims and Self-Government negotiating policies are routinely ignored by the federal government and kept under control and managed through the Indian Act (with amendments).
Attempts by non-negotiating First Nations to reform the federal Comprehensive Claims and Self-Government policies aren't taken seriously by the federal government because there are so many First Nations who have already compromised their Inherent, Aboriginal and Treaty rights by agreeing to negotiate under the terms and funding conditions of these Comprehensive Claims and Self-Government policies.
For example, following the 1997 Supreme Court of Canada Delgamuukw decision, which recognized that Aboriginal Title exists in Canada, the Assembly of First Nations tried to reform the Comprehensive Claims policy to be consistent with
I never thought I would see the day...
SANTIAGO, Chile (AP) — Chile's government has apologized to a lesbian judge who was denied custody of her three daughters because she is gay.
The apology was issued Friday during a ceremony led by Justice Minister Teodoro Ribera. Chile says it will pay Magistrate Karen Atala $70,000 and grant her medical and psychological treatment.
The reparation comes 10 months after the Inter-American Court of Human Rights condemned Chile's decision to deny Atala custody of her children.
Atala had filed a complaint with the Inter-American Commission of Human Rights in Nov. 2004 after Chile's Supreme Court decided to give custody of her daughters to her ex-husband because she is lesbian. Two of the children are now adults and the third is a teenager.
The ruling followed Chile's approval this year of an anti-discrimination law.
According to a New York appeals court, it is no longer slander to call someone gay - because there is no longer any stigma to being gay.
Formerly, if someone called a person gay or lesbian, that person could sue for money damages because it was a slur on their reputation.
There are no recent Canadian cases on the topic; but I suspect the result would be the same here if someone tried to sue for being called gay (even if they weren't).