The Province Now Decides Who is Married In B.C.

by Terry Wilson
Canadian Awareness Network
March 20, 2013

Ending a long term common law relationship can be a trying and difficult time, but no where near as painful as the process of getting a divorce. This is probably a large reason why Canadians are opting out of marriage and taking the route of common law relationships.

In British Columbia the rate of common law relationships is growing three times faster than marriages, and this of course is cutting into the pocket books of the courts, lawyers, and various other professions. In response to this loss of income, the province has now passed new legislation, that allows the provincial government to decide who is married.

The law has now pronounced you husband and wife
By: Andrea Woo

“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.”

After speaking to a few people that I know who are living n common law relationships. I was rather surprised that they all thought that this is what common law relationships already where. In fact most quoted a time frame of three to six months of living together, for when it took effect. This is not true at all!

In the Ontario Family Law Act, spouse is defined as a person who is married or thinks they are married as well as:

Either of two persons who are not married to each other and have cohabited,

(a) continuously for a period of not less than three years, or

(b) in a relationship of some permanence, if they are the natural or adoptive parents of a child

“A common misunderstanding is that common law partners share property upon relationship breakdown the same way that married people do upon marriage breakdown. There are two very important distinctions in this regard that you should be aware of if you are living common law. Firstly, the home that common law partners reside in together is not considered to be a “matrimonial home”, and as a result a party does not have an automatic right to share in the equity of that home or possession of the home under Part II of the Family Law Act if he she is not a legal owner (i.e. registered on title). Furthermore, there is no automatic right to share in any of the property of the other person upon relationship breakdown unless you have a legal ownership interest in the property.

When two people are legally married and their marriage breaks down, their property is “equalized” by virtue of s.5(1) of the Family Law Act which states that, “when a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them” . Equalization of Net Family Property is a process whereby a person’s net worth (i.e. assets – debts) at date of separation is compared to their net worth (assets – debts) at date of marriage. The change in each person’s net worth as of date of separation is their “Net Family Property”. The person who’s net worth has increased the most over the span of the marriage is ordered to pay half of the difference of the parties’ net worth’s as an equalization payment. However, the definition of spouse in Part I and II of the Family Law Act that deals with property and matrimonial homes, includes only persons who are legally married, or who thought that they were legally married. It does not include common law partners. This is why there is no automatic right for common law partners to share in the value of the other’s property upon relationship breakdown.

The fact that common law partners are treated differently than married partners when it comes to property division was challenged by a women in Nova Scotia, (where they have very similar family legislation that does not include common law partners in the property provisions) as being contrary to s.15(1) of the Charter of Rights and Freedoms that guarantees equality under the law. The Supreme Court of Canada surprised everyone by finding that the differential treatment was not discriminatory. The reasoning given for this is that:

Although the courts and legislatures have recognized the historical disadvantages suffered by unmarried cohabiting couples, where legislation has the effect of dramatically altering the legal obligations of partners, choice must be paramount. The decision to marry or not is intensely personal. Many opposite sex individuals in conjugal relationships of some permanence have chosen to avoid marriage and the legal consequences that flow from it. To ignore the differences among cohabiting couples presumes a commonality of intention and understanding that simply does not exist. This effectively nullifies the individual’s freedom to choose alternative family forms and to have that choice respected by the state.

Nova Scotia (Attorney General) v. Walsh, [2002] 4 S.C.R. 325, 2002 SCC 83″

People are opting out of marriage because of the heartache and costs. Now the state is overstepping their bounds with a total disregard of personal choice. The outcome of this? Could be many things. But in my opinion it will further destroy what is left of many families. Why enter a common law relationship, live together, etc. If the state is going to have the final say in your personal matters?

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