Bill 28: Family Statutes Amendment Act 2018 passed First Reading today. The Bill can be read here. Its status can be followed here.
I reviewed the Bill as it's drafted so far, and compared it to current legislation. Here are some of the proposed highlights:
In the Family Law Act, adult children now include those unable to withdraw due to illness or disability (in addition to full-time studies, which had already been listed in the Act). This reflects the decisions which held that the different application to children of married and unmarried parents was unconstitutional.
The Matrimonial Property Act will be renamed the Family Property Act.
The new Family Property Act will apply to both married and unmarried persons (i.e. we finally have common law property legislation, congratulations to everyone involved in the push to make this happen!).
Whether the new statute applies to unmarried persons will depend on whether they satisfy the definition of "adult interdependent partner" in the Adult Interdependent Relationships Act.
The definitions "matrimonial home" and "matrimonial property order" have been abolished, we'll now refer to the "family home" and a "family property order", for both married and unmarried couples.
There's a modified version of the one-year separation before Judgment rule. The court can't make an order unless they become former AIPs, or there has been dissipation or a partner intends to dissipate. To be former AIPs, they need to be separated for a year, enter into a written agreement, marry a third party, enter into an AIP agreement with a third party, or obtain a declaration of irreconcilability. Not that we can presently get to trial within a year anyways, but this might be relevant if you're entering a Consent Judgment rather than drafting a Separation Agreement. The 90 day reconciliation provisions have also been incorporated.
The 2 year limitation period for unmarried partners to file a claim appears to remain, but it commences 2 years from when the applicant first know or ought to have known that they became a former adult interdependent partner. In most cases, this actually means a 3 year limitation period, due to the definition of former AIP (see the preceding paragraph).
Instead of property prior to the marriage being exempt, property acquired prior to the marriage is only exempt if the spouses weren't AIPs before then, and a new exemption has been created for property acquired prior to the relationship of interdependence, whether or not they're now married or still AIPs. This means we generally won't need to file an unjust enrichment claim where spouses were AIPs prior to the marriage.
Shockingly, unless there's an agreement that meets section 38's requirements, the valuation date will be the date of trial. This is the opposite of what the Alberta Law Reform Institute (ALRI) had recommended in its thorough Report 107 published September 2015, which had recommended the date of separation as the presumptive valuation date. I note that the language doesn't refer to a presumption as is the current law, meaning that all property will be valued at the date of trial, even pensions or property acquired after a long separation. I suspect in those types of circumstances we'll instead begin arguing for unequal division.
Non-exempt AIP property will be divided equally, similarly subject to the section 8 factors. Maybe this could be used to soften the blow of the new trial valuation date?
Strangely enough, it's explicitly recognized that the new Act won't be able to force pensions, LIRAs, LIFs, and similar locked-in accounts to distribute to unmarried persons where their legislation does not permit. According to a recent decision, this might be unconstitutional. That said, the Employment Pension Plans Act's marriage breakdown provisions are proposed to be amended to encompass AIP property, along with retroactivity to allow the parties to file a declaration that they want the new provisions to apply, even if they separated after January 1, 2020.
Rules pertaining to estates have been extended to AIP estates, such as the requirement to file a claim within 6 months of the grant of probate or administration.
When updating the exclusive possession sections to encompass AIPs, it looks like they may have forgotten to add the Family Law Act's newer factor of consideration, "any restrictions or conditions of any lease involving the family home, if applicable". Despite there being a number of consequential amendments to various statutes, it also looks like they may have forgotten to remove the Family Law Act's exclusive possession provisions.
AIP Agreements will become unenforceable after a marriage unless the Agreement is clear that it was intended to continue or apply after the marriage. Agreements only appear to be valid between spouses and AIPs, and the Bill goes so far as to say that agreements won't be enforceable if a person purporting to be an AIP knew or ought to have known that there wasn't a valid adult interdependent relationship. Does this mean that if they're under the 3 year minimum duration and don't have children they can't enter into a Cohabitation Agreement???
There's a transitional provision which confirms that the Matrimonial Property Act will continue to apply to persons who lived separate and apart before January 1, 2020, although parties can agree to operate under the new legislation if they had previously commenced an action under the MPA (although there's nothing about being able to agree where they separated but an action hadn't been commenced).
Existing agreements prior to coming into force continue to be in effect.
Unfotunately, the proposed drafting isn't great, many sections are duplicated depending on the type of relationship or long and convoluted, instead of using common definitions such as "relationship period" and "partners". For example, the 5-word section 8 factor "the duration of the marriage" is now 57 words long.
The antiquated Married Women's Act has been repealed.
The bill has only gone through first reading; is it too late for a push from the legal community to reconsider the valuation date? For what it's worth I am going to send an email expressing my concern on this issue. I know that to be too critical of whole bill, while valid, would detract from what I consider to be a key element of the legislation that needs to change.
I just made it so that you can post announcements on this website, so if you want to post a plea and see if you can get a push going (or even a template letter that can be sent to MLAs), you're definitely welcome to. In the consultation that I was part of, there seemed to be a clear consensus that the presumptive valuation date should be the separation date, although I heard that another group still liked the trial date. I don't have a strong opinion either way, although personally I am strongly opposed to it no longer being a mere presumption. The way that it's drafted right now could lead to some bizarre outcomes, particularly in relation to lengthy separations and ventures commenced after the separation.
I had emailed the Minister about my concerns with the date of division. I was able to connect with someone from her office, Moira Vain, today after playing a bit of phone tag. I should be getting an "official" letter in response about this issue which I will share here when I receive it. It seems that the Minister received competing information from the family bar about what we thought was best on this issue. I asked if there was anything that could be done at this stage, given that the bill already has royal assent. It's mostly likely that nothing more will be done at this stage, however, there is a small chance the government will introduce a miscellaneous bill early in the new year. If there was enough noise on this issue it could be addressed there. Alternatively, this issue can be brought to whatever government comes into power in 2019. If this is something anyone feels should be addressed now, you may want to email the Minister (firstname.lastname@example.org; email@example.com) before the end of the year.