In today’s Blog MacLean Law Family Law Associate* Oli Spinks explains The BC Family Law Act: A Comprehensive Breakdown of the 2023 Amendments
In the dynamic world of law, staying current with legislative amendments is not just a requirement but a commitment to providing clients with the best possible counsel. At MacLean Law, this commitment is at the heart of our practice. We continuously strive to stay abreast of changes in the legal landscape, translating complex legalese into accessible knowledge for our clients. Some of the changes are dramatic blockbusters which you need to know about if you are considering separation and divorce
BC Family Law Act: A Comprehensive Breakdown of the 2023 Amendments 604 602 9000
Our own Oliver Spinks, is here to guide you through the latest wave of changes to the British Columbia Family Law Act. These changes, which came into effect on May 11, 2023, are expected to significantly alter crucial aspects of separation processes, including property transfers and pet custody. Lawyer groups support the changes.
Changes to the Presumption of Advancement Rule (Section 81.1) 604 602 9000
The BC Family Law Act 2023 amendments bring about significant changes, one of which includes eliminating the age-old “presumption of advancement” principle. This principle, often a source of dispute, assumes that a property transferred from one spouse to another is considered a gift unless proven otherwise. Disagreements often arise, for instance, when a spouse uses an inheritance to clear a mortgage debt.
Under the newly implemented Family Law Amendment Act 2023, Section 81.1 clearly dismisses the presumption of advancement in matters concerning property ownership between spouses. This welcome change aims to simplify property division procedures and mitigate potential conflicts over the intention behind property transfers.
Clarity on the Presumption of Resulting Trust and Excluded Property (Section 85) 604 602 9000
The BC Family Law Act amendments include significant modifications to Section 85, providing greater clarity on the contentious issue of the presumption of resulting trust and the division of excluded property during a separation.
The BC Family Law Act typically mandates an equal division of family property between separating spouses. However, it also specifies certain categories of excluded property that remain untouched during this division. Such property includes:
- Property owned by a spouse before the relationship began
- Inheritances received by a spouse
- Gifts given to a spouse from a third party
- Personal injury compensation awarded to a spouse
- Property derived from the categories listed above
The new amendments make it clear that if a property is excluded under subsection (1), the exclusion still applies even if the property’s legal or beneficial ownership was transferred from one spouse to another.
Fresh Guidelines on Division of Excluded Property (Section 96) 604 602 9000
Section 96 of the BC Family Law Act 2023 introduces new rules regarding the division of excluded property. As per the updated law, the Supreme Court will only order a division of excluded property if certain specific conditions are met. These conditions could include scenarios where the division of family property or family debt outside British Columbia is impractical, or when it would be profoundly unjust not to divide the excluded property.
Significant factors determining such unfairness include:
- A spouse’s direct contribution to the preservation, maintenance, improvement, operation, or management of the excluded property
- The terms of any agreement between the spouses regarding the excluded property
- Instances where the Supreme Court identifies significant unfairness under section 95 (1)
Pets Get Special Attention in Separations (Section 97) 604 602 9000
A revolutionary shift in the BC Family Law Act 2023 is the acknowledgment of pets as valued family members rather than just property. This change reflects the emotional bond that families often share with their pets.
The new rules consider more than just who bought the pet or whose name is on the registration. In a move towards a more holistic approach, the courts will now consider factors like:
- The demonstrated ability and willingness of a person to care for the pet
- The relationship between a child in the family and the pet
- Any potential risk of family violence or animal cruelty
This pet-friendly approach ensures the welfare of pets is factored into decisions during separations and divorces, acknowledging their integral status as beloved family members and not mere property.
BC Family Law Act: A Comprehensive Breakdown of the 2023 Amendments – Exceptions
However, these updates have a few exceptions. If you began legal proceedings about dividing property before the new rules were made official, or if you’re looking to change an agreement about property division made before May 11, 2023, then the older rules will still apply to you.
Also, while most of the new rules are now active, the ones regarding pets will be put into effect later on this year. You can read more about all of these changes in Bill 17.
BC Family Law Act: A Comprehensive Breakdown of the 2023 Amendments- In Conclusion
The BC Family Law Act 2023 amendments embody an effort to resonate with evolving societal norms and values. They offer clearer guidelines for those undergoing separation and the legal community, aiming to ease some inherent challenges in these processes.
Gaining insight into these changes is critical if you’re navigating a separation or prepping for potential future adjustments. Don’t hesitate to contact Oliver Spinks from MacLean Law for any questions or assistance related to these changes. With expert advice, you can make informed decisions that safeguard the best interests of you and your family.
If you have questions on BC Family Law Act: A Comprehensive Breakdown of the 2023 Amendments, contact Oliver Spinks immediately.
*Oliver Spinks expects to be called in September 2023
