The law has now pronounced you husband and wife

VANCOUVER — The Globe and Mail

Maddison Spenrath, 26, and partner Kyle Eerbeek, 28, originally from Calgary but now in Vancouver, have been a couple for 11 years and lived together for about half of that. (Rafal Gerszak for The Globe and Mail)

A couple for more than a decade, Maddison Spenrath and Kyle Eerbeek are, by all accounts, in it for the long haul. The two started dating in high school and, in 2008, moved from Calgary to Vancouver, settling into an apartment in the city’s Mount Pleasant neighbourhood. In 2011, they toured Hawaii’s Big Island, navigating mountains, beaches and tropical rainforests on their first big vacation together – an experience Ms. Spenrath recalls as “amazing.”

Story continues below ad

There has been passing talk of marriage, but both agree now is not the time.

“We don’t see a benefit of getting married [over] our own relationship,” said Ms. Spenrath, a graduate student at the University of British Columbia. “I wouldn’t rule it out entirely, but definitely not in the near future.”

But on Monday, Ms. Spenrath, 26, and Mr. Eerbeek, 28, will be married – in virtually every legal sense. That’s when B.C.’s new Family Law Act comes into effect, granting couples who have lived together for two or more years the same rights and regulations as married couples. So while no ink has hit a marriage certificate, one partner’s new car suddenly becomes “family property”; student debt accrued by the other during the course of the relationship becomes “family debt.”

“The biggest issue I have is how it puts you in a marriage-like relationship without consent,” Ms. Spenrath said. “It’s more of an automatic process, that’s based arbitrarily on a two-year time period, rather than a more proactive stance. If I wanted the rights of a married couple, I would get married.”

Grace Choi, a partner at Canadian law firm Davis LLP, calls the new legislation a “wholesale, dramatic, landscape shift” from the existing Family Relations Act, which, until now, had not been comprehensively reviewed since it took effect in 1979.

“Society has changed greatly in that time period,” said Ms. Choi, who presented on the matter to B.C.’s Court of Appeal justices. “I think the government, along with pressure from different groups of people, has tried to bring into account different considerations and bring the act into more of a modern time.”

There are more than 160,000 common-law couples in B.C., and such arrangements are growing at a rate three times faster than marriages, according to 2011 Statistics Canada census data. The new legislation will give equal legal footing to those in marriage-like relationships – but perhaps at the expense of those finding their way in new relationships, cohabiting primarily to save money or, like Ms. Spenrath and Mr. Eerbeek, simply wanting to make that decision on their own.

Justice Minister and Attorney-General Shirley Bond was not available for comment, but said in a statement the new act is centred on supporting modern B.C. families – no matter how they are defined.

“Our new family law reflects family justice reform in a way that better represents the values of our citizens and addresses … important topics like out-of-court dispute resolution, property division, parenting arrangements and family violence,” Ms. Bond said. “Most importantly, the new family law is about ensuring children’s interests and safety are given the utmost priority when families go through the emotional turmoil that often comes with separation and divorce.”

The ministry says it has researched and consulted on the legislation since 2006, receiving feedback from hundreds of “organizations, groups and members of the public” during the process.

***

B.C.’s new Family Law Act, which comes into effect March 18, focuses on three main categories:

PROPERTY

Perhaps the most significant change under the new legislation regards the division of property, assets and debt. Effective Monday, couples who have lived together for at least two years will have equal entitlement to property – and responsibility for debt – accrued during the relationship.

“In the past, people could have been living together for 20, 30, 40 years, but at the end of that time, if the assets weren’t in your name, then you really had no right to them unless you could prove contribution,” Ms. Choi said. “That is going to be extremely different under the new act.”

Property acquired before the relationship began is excluded, as are gifts, inheritances, settlements and awards of damages. However, any increase in value of the pre-relationship assets will be divided. This is a change for married couples who, under the outgoing legislation, have equal entitlement to all assets characterized as “family assets,” including those brought into the relationship. Other areas of the law, including spousal support and income tax, already treat common-law couples the same as married couples.

In amicable separations, couples can choose instead to divide their property as they see fit. Those wanting a measure of security can sign a cohabitation agreement, which is similar to a prenuptial agreement.

CHILDREN

Monday will also usher in an era when the best interests of a child will be the court’s only consideration when making decisions relating to guardianship, parenting arrangements or contact with the child.

“The new act shifts the focus … from the parents to the children,” Ms. Choi said. “Now, the only factor in making decisions about children is what is in the best interest of the child. Previously, that was of paramount concern, but it wasn’t the only concern.”

Whereas it is difficult under the outgoing act to enforce parenting time agreements, the new act allows the court to issue a fine of up to $5,000 to a parent wrongfully denying the time. Alternatively, the court can require the parent denying time to reimburse the other parent for travel, child-care expenses or lost wages.

As well, the act encourages parents to first seek out-of-court settlements through avenues such as mediation, arbitration and parenting co-ordinators.

“Court is not necessarily the best place for resolving family disputes, partly because of the time and the cost, and just the emotional factor,” Ms. Choi said.

Existing tools such as reports that focus on the views of the child will play a much bigger role under the new legislation, where appropriate.

FAMILY VIOLENCE AND SAFETY

Factoring into a child’s best interests is the issue of family violence – an area that is explicitly defined in the new legislation. The court will soon have the ability to issue protection orders, which replace restraining orders under the Family Relations Act and can restrict contact and communication between family members.

In determining whether to make such an order, the court will consider numerous risk factors, including the history of, and potential for, family violence, including psychological, sexual and emotional abuse. Various parties can apply for a protection order, including an at-risk family member, a person on behalf of that family member or the court itself. Whereas a breach of a restraining order under the outgoing Family Relations Act is a civil matter, a breach of a protection order under the new law will be a criminal offence.

“While the courts have always recognized family violence as being an important factor, now there is more of a focus on this issue,” Ms. Choi said. “Counsel is going to have a duty to discuss and assess family violence.”

All family dispute-resolution professionals will be required to screen for family violence.

Follow on Twitter: @andreawoo

Topics: