5 Things to Know about the Family Law Act
The Family Law Act is a provincial statute that governs the rights and entitlements of spouses on the breakdown of the relationship. It came into effect on March 18, 2013 and replaced the Family Relations Act.
There are five key things you should know about the Family Law Act:
- The statute applies to both married and common law spouses.
The definition of ‘Spouse’ under the Act includes a person who is married to another person, or a person who has lived with another person in a marriage-like relationship for a continuous period of at least two years. The definition also includes someone who has lived with another person in a marriage-like relationship (presumably for less than 2 years) and has had a child with the other person. However, in the latter case the spouse is not entitled to property or pension division under the Act (though it may be possible to make a separate claim on another legal basis).
- The statute presumes spouses will share equally in Family Property and Family Debt.
Each spouse is entitled to an undivided ½ interest as tenants in common in any Family Property and are equally responsible for Family Debt, regardless of their respective use or contribution.
However, equal division is just the starting presumption. It is possible to argue for unequal division based on a number of factors outlined in the statute, such as the length of the relationship, the terms of any agreement, wasting of assets after separation, etc. The Court will award unequal division if an equal division would be significantly unfair considering the relevant factors in the case.
- Spouses are not entitled to a share of all assets owned by their spouse.
The definition of Family Property under the Family Law Act generally includes all assets acquired by the couple, but also accounts for any increase in the value of Excluded Property that accumulates during the relationship. Excluded Property refers to the value of any asset brought into the relationship by one spouse, as well as gifts or inheritances, certain settlements or awards to one spouse, and any disposition of excluded property. It is important to note that the onus for proving that the property in question (ie. a car, art collection, inheritance funds, etc.) is Excluded Property falls on the spouse who seeks to have it excluded.
- You must bring a claim within 2 years.
The Statute requires that claims relating to property division, pension division, and child and spousal support must be brought within 2 years of divorce (in the case of a married couple) or separation (in the case of a common-law couple). Note however that the time limit is suspended during any period of family dispute resolution.
- The statute allows for interim relief.
It is possible under the statute to obtain interim relief, such as interim property division, child support or spousal support. As it can take months or years to resolve family claims, the statute allows for spouses to obtain interim relief pending final resolution of their family claim. This is the case whether you intend to take your case to court or resolve your claim through negotiation or mediation.