First Major Changes to Divorce Act since 1985

On May 22, 2018 the Federal Government introduced Bill C-78, which proposes changes to the Divorce Act. The proposed amendment would be the first significant revision to the Divorce Act since its enactment in 1985.

The changes to the Divorce Act are designed to implement a more “child-focused” approach to family law disputes, rather than an adversarial approach. By removing language like “custody” and “access,” and encouraging dispute resolution, the Act is designed to better promote the interests of the child.

The Minister of Justice, Jody Wilson-Raybould, summarizes the changes as follows:

(a) replace terminology related to custody and access with terminology related to parenting;

(b) establish a non-exhaustive list of criteria with respect to the best interests of the child;

(c) create duties for parties and legal advisers to encourage the use of family dispute resolution processes;

(d) introduce measures to assist the courts in addressing family violence;

(e) establish a framework for the relocation of a child; and

(f) simplify certain processes, including those related to family support obligations.

If this Bill passes in the House of Commons, the legislation will likely come into force in 2019.

Thus far, most family law practitioners and commentators view the proposed changes positively. However, some state the impact of these amendments will depend on how courts across Canada would apply the new provisions. We note that the common-law in Canada already requires the courts to apply a “child-centric” test and only consider the “best interests of the child” when making decisions regarding custody and access (or “parenting time” rather) (Young v. Young, [1993] S.C.J. No. 112). However, the proposed changes to the terminology should help reduce the “win/lose” mentality of many individuals involved in family law disputes.

To view Bill C-78 in its entirety, check out the link below:

https://www.parl.ca/DocumentViewer/en/42-1/bill/C-78/first-reading

To view the Divorce Act (1985), check out the link below:

https://laws-lois.justice.gc.ca/eng/acts/D-3.4/page-1.html

Have you taken the “For the Sake of the Children” course?

Separation and divorce can be painful and confusing for all parties involved. This is especially true for the children of separating couples.

It is important to recognize that you are not the only one hurting while you are going through a divorce. Children often get caught up in arguments and discussions between parents. For the Sake of the Children offers an informative program that helps to educate separating parents about the impact of certain actions on their children. The program reminds us that children are aware of more than we sometimes realize and that it can be very difficult for them to process painful and confusing information, in a healthy way, without the proper support and guidance. In addition, it can be difficult for parents to avoid the temptation to involve their children in their disagreements. For the Sake of the Children can help you to put your differences aside and focus on what really matters–the children!

In Manitoba, it is mandatory for separating parents seeking custody agreements to attend a similar educational program. Here in New Brunswick, however, the program is offered for free to any interested party, but it is not mandatory.

I have personally seen how parents justify using their children as pawns in their battle against eachother. It is not pretty and will ultimately not endear you to a Judge. Remember the words of Ontario Judge Alex Pazaratz in a previous post here.

See below to view the instructional videos shown during the For the Sake of the Children program:

Children: The Experts on Divorce (15 minutes)

https://vimeo.com/11106924

Divorce and Separation: Legal Considerations (19:44 minutes)

https://vimeo.com/11106951

Vignette #1:  Miguel (The Messenger) (7 :27 min.)

https://vimeo.com/10556768

Vignette #2: Nathan (The Exchange) (3 :00 min.)

https://vimeo.com/10556790

Vignette #3: Denise (The Haircut) (6 :39 min.)

https://vimeo.com/10556698

Vignette #4: Jessie (Mom’s house – Dad’s house) (9:41 min.)

https://vimeo.com/10556748

For more information, or to register for the program, check out the following links:

 

For discussion:

  1. Should For the Sake of the Children or a similar program be made mandatory for parents who wish to separate in New Brunswick?
  2. Can you think of any issues that may arise with requiring all parents to attend the program before separating and implementing custodial agreements?

 

 

 

 

You Can’t Always Get What You Want…and Other Sad Songs: Common Law Couples & Property Rights

 Tough Questions

One of the topics that I discuss often with clients and prospective clients is property rights of common-law partners. There are many misconceptions and myths regarding this topic. For example, I often hear questions similar to the following:

– My partner and I have been together for two years; that means we are entitled to half of each other’s property, correct?

– My partner and I have been living together for 10 years. We purchased furniture together and most of our property was purchased after we started living together. We are each entitled to half of each other’s property, correct?

– My partner and I have been together for 6 months; is s/he entitled to half of my stuff?

The answer to many of these questions is “no, but….”. It’s understandable that these issues become confusing for the average person. The beginning of the confusion for most people starts with the Marital Property Act, SNB 2012, c.107, which defines “spouse” as a “married person”. Therefore, the division of property under the Marital Property Act (upon which the above questions are based) only applies to married people.

Kerr v. Baranow changes the landscape

In the now oft-cited case, Kerr v. Baranow, 2011 SCC 10, Justice Cromwell for the Supreme Court of Canada, noted at paragraph 1 that over a period of 30 years, courts have wrestled with property division for married couples, resulting in the various marital property acts enacted in the provinces in the late 1970s and 1980s. However, he notes that these acts only apply to married people. Regarding unmarried couples, Cromwell stated as follows:

For unmarried persons in domestic relationships in most common-law provinces, judge made law was and remains the only option. The main legal mechanisms available to parties and courts have been the resulting trust and an action in unjust enrichment. (Kerr, supra at para 1)

While common-law couples may not be able to turn to a provincial marital property statute for division of their property, the Supreme Court in Kerr, supra allows a division of property through unjust enrichment. If the claimant can prove the couple were engaged in a “joint family venture” and that he/she contributed to the joint family venture through work or funds contributed, then he/she may be able to use unjust enrichment to seek compensation for his/her contributions to the joint family venture.

Justice Cromwell notes at paragraph 31 in Kerr that “at the heart of the doctrine of unjust enrichment lies the notion of restoring a benefit which justice does not permit one to retain.” In other words, where a provincial marital property statute is not an avenue to compensation, but unjust enrichment may be.

Test for unjust enrichment

For recovery of the funds/services provided, the test for unjust enrichment requires the claimant to prove the following:

  1. The defendant has been enriched by the plaintiff (through the plaintiff’s contribution to the joint family venture);
  2. The plaintiff has suffered a corresponding deprivation (loss) due to the defendant’s enrichment;
  3. There is no juristic reason why the claim for unjust enrichment must fail and for the defendant to retain the benefit conferred by the plaintiff. At this step of the analysis, the plaintiff must exclude specific legal categories, which would provide reason for why the action in unjust enrichment must fail (gifts, statutory obligations, etc.). Secondly, this part of the analysis requires consideration of the reasonable expectations of the parties and public policy considerations of why recovery should be denied.

Finally, the Court notes that the remedy for unjust enrichment could include either a monetary award or proprietary award (return of property) but favours a monetary award if possible.

You Can’t Always Get What you Want!…and Other Sad Songs

Since 2011, Kerr v. Baranow has been cited several times by New Brunswick courts in dealing with property rights for common-law couples (for example, see paragraph 19 in Wills v. Kennedy, 2015 NBCA 31 (CanLII) for a list of cases citing Kerr v. Baranow). However, in Rollie Thomson, Lovers in a Dangerous Time’: Loose Ends After Kerr v. Baranow (Paper presented by Rollie Thomson at Canadian Bar Association, Midwinter 2014, February, 2014, Moncton, NB), Professor Thomson notes that many questions arise about Kerr’s application to specific circumstances: How do we quantify contributions? Does a property remedy through unjust enrichment apply to pre-marriage cohabitation in actual marriages? Does the analysis in Kerr affect spousal support payments?

Courts in New Brunswick have notably applied the unjust enrichment remedy unequally in different cases, making outcomes less predictable. In Mike Landry, “Breaking up is hard to do: common law partner denied share of ex’s pension” Telegraph-Journal (29 September 2016), the author refers to the recent (September 8, 2016) New Brunswick Court of Appeal case of Noel v. Butler, 2016 NBCA 49, wherein the Court denied Noel’s request for a portion of Butler’s pension because of lack of evidence that Noel specifically “contributed in any meaningful way to Butler’s ability to work as a teacher and accumulate pension benefits.”

After reflecting on Kerr v. Baranow, the answer to the questions above could now be: “possibly, if you can prove unjust enrichment based on the facts.” But absent legislative changes to clarify this area of the law, common law couples will remain “lovers in a dangerous time” because “breaking up is hard to do” and “you can’t always get what you want.”

Should you have any specific questions regarding your property rights in a common-law relationship, feel free to contact us.