Becoming Common-Law

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments made in this post. See my posts "The Early and Unlamented Deaths of ss. 90 and 120.1: Government takes quick action on parental support and unmarried persons' property agreements" and "Family Law Act Introduced!" for more information.

I was looking at one of the forums which links to my website, and a user had posted a question which reminded me of the prevalence of bad information about common-law relationships: "how do I apply for common-law status?" I think it's time for a refresher.

Being "common-law" is all about qualifying as a spouse as defined by a particular law.

Different laws have different definitions of "spouse."

Under the federal Divorce Act, "spouse" means someone who is or was legally married to someone else; under the Canada Pension Plan, a "common-law partner" means someone who lived in a conjugal relationship with the pension contributor for at least one year.

Under the provincial Family Relations Act, "spouse" is defined as including married people as well as unmarried people who have lived together in a marriage-like relationship for at least two years. Under the Employment and Assistance Act, the law about welfare benefits, "spouse" includes people who have lived together for at least three months if the relationship demonstrates some sort of interdependence.

As a general rule of thumb, most federal laws define "spouse" or "partner" as including unmarried people who have lived together for at least one year and most provincial laws define "spouse" as including unmarried people who have lived together for at least two years.

Qualifying as a spouse may give you benefits and obligations under a particular law.

A "spouse" under the Family Relations Act is entitled to use the act to apply for spousal support (or may be obliged to pay it), and someone who is the "spouse" of a parent may be obliged to pay child support in respect of the parent's children.

A "spouse" under the Wills Variation Act is entitled to use the act to apply to change the distribution of benefits set out in a person's will. A "common law spouse" under the Estate Administration Act is entitled to an automatic share in the estate of someone who dies without a will.

A "partner" under the Canada Pension Plan is entitled to share in someone's pensionable credits and may be entitled to survivor's benefits in the event of that person's death.

The definition of spouse usually has conditions and limits.
For unmarried couples, applications under the Family Relations Act must be made within one year of separation. After that, they will no longer be a "spouse" within the definition of the legislation. Married couples, on the other hand, must make their applications under the act within two years of divorce or the annulment of their marriage.

The Wills Variation Act and the Estate Administration Act both define a "spouse" as someone who was living with the deceased person immediately before his or her death. If the couple separated before the the person's death, they won't qualify as spouses.

The Divorce Act only defines "spouse" as including married or formerly married couples. Unmarried couples can't use this act for anything.

Being common-law is only about the definition of spouse.

Common-law spouses only become common-law spouses because they happen to meet the terms of a particular law's definition of "spouse," which usually happens because they cohabited in a marriage-like relationship for a specific period of time. They don't apply for common-law status; there's no government agency to apply to and there's no government agency that keeps track of common-law relationships.

Common-law spouses aren't legally married and will never become married, no matter how long the relationship lasts... unless of course they actually get married, with a marriage licence, a marriage commissioner and all the rest.

Summary:

A couple become common-law spouses when they meet a particular law's definition of "spouse." Meeting a law's definition of spouse usually involves (a) living together (b) in a romantic relationship (c) for a certain amount of time. No application is necessary, just the passage of time. The definition of spouse changes from law to law.

Most but not all federal laws define "spouse" as including unmarried people who have lived together for at least one year; most but not all provincial laws define "spouse" as including unmarried people who have lived together for at least two years.

Being common-law spouses doesn't mean that a couple is married; it means that the spouses may have certain rights and duties toward each other. The nature of these rights and duties also changes from law to law, and some laws impose terms and conditions on the rights and duties unmarried spouses.

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The Revenge of Facebook, Part III

CBC has reported on a survey of American divorce lawyers which found that Facebook ("Facebook helps you connect and share with the people in your life") had been cited in 1 in 5 US divorce cases and that the number of people using social media to conduct affairs seems to be on the rise.

In a dramatic but slightly bizarre press release titled "Don't Let Your Marriage be Among the 1 in 5 Destroyed by Facebook" issued by Loyola University commenting on the survey, clinical psychologist Steven Kimmons is quoted as saying that "improper use" of Facebook can "quickly devolve into marital disaster." The press release then offers some "safeguards" that must be intended for people with exceptionally poor impulse control:

1. Look at how you use social media to see whether you talk to more men or more women and whether there is a certain type of person you prefer chatting with. "That can tell you something about how you’re using social networks. You may not even be aware that you’re heading down a road that can quickly get pretty dangerous."
2. Set limits from the get go. "Spell out from the beginning with your online contacts what your expectations are of social networking relationships."
3. Don't get naughty with your online friends. "It’s a good idea to not engage in intimate conversation with someone who is not your spouse." Duh.
4. Share passwords with your spouse and "place the computer in a common area in the house or apartment." Like you would with an irresponsible teenager.

Hey, I'm on Facebook; drop me a line.

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Access Pro Bono Launches Court Form Service

Access Pro Bono, the organization created by the merger of Pro Bono Law British Columbia and the Access Justice Society, has announced a new Paralegal Program under which paralegals supervised by a lawyer will give low-income Supreme Court litigants help drafting court documents. The program, sadly, is only for non-family law civil matters; less extensive help for family law cases can still be had from the self-help centre.

This is how the new service works:

• Each paralegal program will engage the volunteer services of two to four paralegals and one supervising lawyer
• The Law Courts Center will recruit, monitor and train the volunteer paralegals as needed and Access Pro Bono will recruit supervising lawyers as needed
• The supervising lawyer will directly supervise each client file at the Vancouver Justice Access Centre
• The supervising lawyer will be responsible for the legal advice and assistance provided by the paralegals
• Volunteer paralegals will each see a maximum of two clients per clinic and the program will serve a maximum of eight clients per day

If you are interested in this service, call 604-660-2084, or go in person to the Vancouver Justice Access Centre at 290-800 Hornby Street in Vancouver and ask to be booked into the Paralegal Program.

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New Random Answers to Random Search Terms

I haven't done a Random Answers post for awhile, but this week's search terms were inspiring. Click on the tag at the end of this article to read older posts.

Separation

>> remarrying after common law separation

Go right ahead and get married. Common-law couples aren't legally married, and you don't need to get a divorce before entering into a new long term relationship or getting married.

Separation Agreements

>> who can witness the signing of a separation agreement

Anyone who is 19 or older and sane, and not the other party to the agreement.

>> how many copies of the separation agreement are required in bc

Only one original copy is absolutely necessary, however it's sometimes helpful to have additional copies in case you need to file the agreement in court for enforcement purposes. Normally, each party would have one original copy and each lawyer would have one original copy, for a total of four copies. I usually make an extra original copy so that I can file one in court and still have an original copy for my records, making a total of five copies.

>> difference between separation agreement and divorce

A separation agreement is a contract recording the settlement of the issues arising when a relationship breaks down. A divorce is a court order legally terminating a marriage. You must get an order to be divorced, you can't be divorced by a separation agreement.

Divorce

>> why is there a 31 day waiting period in a divorce case

This search term is about the 31 delay between the date the court makes a divorce order and the date the divorce order takes effect. The delay is required in order to allow the appeal period to expire before the couple are actually divorced. If there is an urgent reason for the divorce to take effect earlier than the end of the appeal period, the court making the divorce order can specify that it will take effect sooner. The court may require both spouses to execute Certificates of No Appeal.

>> does having sex with the person you just divorced make the divorce void

Nope. Go for it.

Litigation

>> what happens if you respond late to a family claim in bc supreme court

In theory, someone who doesn't reply to a Notice of Family Claim within the 30 day period prescribed by Rule 4-3(1) of the Supreme Court Family Rules is not a "respondent" as defined by Rule 1-1(1) and isn't entitled to notice of any further step in the case, including the trial. Although this sounds pretty Draconian, the court will allow a respondent to file a Response to Family Claim late and will usually allow an application to set aside a default judgment as long as the respondent had a good reason for not responding.

>> can judges make rulings at provincial court case conference

Yes. Under Rule 7(4) of the Provincial Court (Family) Rules, the judge hearing a Family Case Conference can (b) decide any issues that do not require evidence, (f) make an order to which all of the parties consent and (n) make any other order or give any direction that the judge considers appropriate. The court will not usually make any orders except procedural orders without the parties' agreement.

>> can a cpl be registered in bc provincial court

No, but they can't be registered in the Supreme Court either. Certificates of Pending Litigation are registered with the BC Land Title and Survey Authority.

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Supreme Court Scheduling Online

Here's a very handy link to add to your bookmarks, the scheduling page of the Supreme Court of British Columbia's website: www.courts.gov.bc.ca/supreme_court/scheduling/. This page lets you see the available court dates for:

1. Judicial Case Conferences;
2. chambers applications longer than two hours ("Family Lengthy Chambers Available Dates");
3. Settlement Conferences;
4. Trial Management Conferences;
5. trials ranging from two to nineteen days in length; and,
6. the court's calendar of closures and holidays ("Court Calendar 2011").

Very handy.

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Child Abduction Cases and the Courts

I've spent much of the past week at a legal conference in Calgary (not the one featuring the Chief Justice, that was in Toronto). One of the sessions dealt with interprovincial and international child abduction and offered a lot of information I think might be of interest to a broader audience.

International Abduction

The website of the Hague Conference on Private International Law can be found at www.hcch.net. This is where you'll find a complete listing of the international Hague agreements on domestic relations, covering legal issues ranging from adoption to support obligations, as well as the Convention on the Civil Aspects of International Child Abduction. The Conference's child abduction case law database can be found at www.incadat.com.

Certain signatories to the convention on child abduction have offered up a member of their judiciaries to the International Hague Network of Judges, formed to support the convention by easing communication between the courts of signatory countries. The list of participating judges as of December 2010 can be found here (PDF); the Canadian judges are:

• Civil Law: L'hon. Juge Chamberland, la Cour d'appel du Québec
• Common Law: Hon. Madam Justice Diamond, Manitoba Court of Queen's Bench

The Central Authority for the convention in British Columbia is Ms. Penelope Lipsack of the Attorney General's office.

Interprovincial Abduction

The primary federal legislation on custody and access rights is the Divorce Act, RSC 1985, c. 3 (2nd Supp.). Although the Divorce Act contains no enforcement provisions, s. 20 provides that Divorce Act orders have effect throughout Canada and may be registered in the court of any province and be enforced as an order of that court. Another federal law, the Family Orders and Agreements Enforcement Act, RSC 1985, c. 4 (2nd Supp.) provides for the release of government information about a person for the purposes of enforcing orders about custody and access.

The current provincial and territorial legislation on the enforcement of custody and access rights is:

• Alberta: Extra-Provincial Enforcement of Custody Orders Act, RSA 1980, c. E-17, and Family Law Act, RSA 2003, c. F-4.5
• British Columbia: Family Relations Act, RSBC 1996, c. 128
• Manitoba: Child Custody Enforcement Act, CCSM c. C360
• New Brunswick: Family Services Act, SNB 1980, c. F-2.2
• Newfoundland & Labrador: Children's Law Act, RSNL c. C-13
• Northwest Territories: Children's Law Act, RSNWT 1997, c. 14 (PDF)
• Nova Scotia: Family Orders Information Release Act, RSNS 1989, c. 161, and Reciprocal Enforcement of Custody Orders Act, RSNS 1989, c. 387
• Nunavut: Children's Law Act, RSN 1990, c. C-13 (PDF)
• Ontario: Children's Law Reform Act, RSO 1990, c. C.12
• PEI: Custody Jurisdiction and Enforcement Act, RSPEI 1988, c. C-33 (PDF)
• Quebec: Code civil du Québec, SQ 1991, c. 64
• Saskatchewan: Children's Law Act, SS c. C-8.2
• Yukon: Children's Law Act, RSY 2002, c. 31 (PDF)

(Interestingly, the Nova Scotia enforcement legislation only applies in respect of those provinces which have reciprocal agreements with Nova Scotia, and not all do.)

The Judicial Response

The Canadian Judicial Council has established a network of superior court contact judges to address interprovincial and international abduction cases and facilitate communication between the courts of different provinces and between Canadian courts and foreign courts. The current members of the Canadian Network of Contact Judges for Interjurisdictional Cases of Child Protection are:

• Chair: Hon. Madam Justice Diamond, Manitoba Court of Queen's Bench
• Alberta: Hon. Madam Justice Moen, Court of Queen's Bench
• British Columbia: Hon. Mr. Justice Butler, Supreme Court
• Manitoba: Hon. Madam Justice MacPhail, Court of Queen's Bench
• New Brunswick: L'hon. Juge Robichaud, la Cour du Banc de la Reine
• Newfoundland & Labrador: Hon. Mr. Justice Cook, Supreme Court Trial Division
• Northwest Territories: Hon. Madam Justice Schuler, Supreme Court
• Nova Scotia: Hon. Mr. Justice Dellapinna, Supreme Court Family Division
• Nunavut: Hon. Mr. Justice Johnson, Court of Justice
• Ontario: Hon. Mr. Justice Harper, Superior Court of Justice
• PEI: Chief Justice Matheson, Supreme Court
• Quebec: L'hon. Juge Gaudreau, la Cour supérieure
• Saskatchewan: Hon. Madam Justice Ryan-Froslie, Court of Queen's Bench
• Yukon: Hon. Mr. Justice Gower, Supreme Court

A similar network has been established between the provincial courts. The current contact judges are:

• Alberta: Hon. Judge O'Gorman, Provincial Court
• British Columbia: Hon. Judge Wingham, Provincial Court
• Manitoba: Associate Chief Judge Thompson, Provincial Court
• Newfoundland & Labrador: Hon. Judge Howe, Provincial Family Court
• Northwest Territories: Hon. Judge Gorin, Territorial Court
• Nova Scotia: Chief Judge Comeau, Provincial Family Court
• Ontario, Toronto: Hon. Justices Weagant and Scully, Ontario Court of Justice
• Ontario, Central West: Hon. Justice Maresca, Ontario Court of Justice (Brampton)
• Ontario, West: Hon. Justice Glenn, Ontario Court of Justice (Chatham)
• Ontario, East: Hon. Justice Malcolm, Ontario Court of Justice (Belleville)
• Ontario, Northwest: Hon. Justice McKay, Ontario Court of Justice (Fort Frances)
• Ontario, Northeast: Hon. Justice Kukurin, Ontario Court of Justice (Sault Ste. Marie)
• Quebec: Juge en chef adjointe Gaumond, la Cour du Québec

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Canada's Chief Justice Comments on Access to Justice

Chief Justice Beverly McLachlin, a former luminary of the British Columbia bench and Canada's top judge since 2000, has made some important remarks about the accessibility of the justice system at a University of Toronto legal conference which have been loudly reported by the Globe and Mail and CBC.

Her Ladyship's comments were focused on the high cost of legal services, the inadequacy of legal aid services, and the monopoly lawyers have over the practice law. To quote from Kirk Makin's excellent article in the Globe:

“Do we have adequate access to justice?” she asked a University of Toronto conference on the problem. “It seems to me that the answer is no. We have wonderful justice for corporations and for the wealthy. But the middle class and the poor may not be able to access our justice system.”

These problems are particularly acute for middle- and low-income earners involved in family law proceedings in British Columbia. Middle-income families often wind up sacrificing the family home on lawyer's fees if a settlement cannot be reached in relatively short order. Low-income families often don't have the luxury of hiring counsel at all, and given the state of the cutbacks to legal aid imposed by Gordon Campbell's government in 2002, legal aid for family law problems is available only in emergency circumstances and for a limited retainer.

I agree with the Chief Justice's comments, but I'm not sure what can be done to correct the problem.

For low-income families, it seems imperative that full funding be restored to the Legal Services Society, but that's only a starting point and requires a very significant, if not prohibitive, budgetary commitment on the part of the provincial government.

For low- and middle-income families, I think we need to focus on two things. First, we need to have the basics of family law and family responsibilities taught in high school so that people enter the legal process from an informed position at least vaguely aware of their rights and duties as parents, spouses and litigants. Second, we need to move from the presumption enshrined in the Divorce Act and the Family Relations Act that court is the default setting for dispute resolution. Negotiation, mediation and collaborative law are generally faster and cheaper means of resolving family law disputes, and are arguably more effective in the long run; they should be where we turn first to find a resolution, and court should be reserved for emergencies, irresolvable disputes, cases involving abduction and threats, and cases involving domestic violence.

It goes without saying that more lawyers need to spend more time on pro bono clients. This however is a matter of individual choice and availability, and not an adequate reply to a problem which is fundamentally systemic.

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Parenting Coordinators Update Roster List

The BC Parenting Coordinators Roster Society has expanded its roster. The society now boasts a total of 34 accredited parenting coordinators and improved availability across the province, with members practicing in:

• Cranbrook
• Fort St. John
• Kelowna
• Nanaimo
• North Vancouver
• Port Coquitlam
• Richmond
• Surrey
• Vancouver
• Victoria

In August this year, the society announced its adoption of the Guidelines for Parenting Coordination (PDF) of the Association of Family and Conciliation Courts as the practice standards of its members and published its criteria for admission to the society as a parenting coordinator.

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Dial-A-Law Updates Family Law Scripts

Dial-A-Law, a public legal information project of the Canadian Bar Association BC Branch, has just published a complete overhaul of its online library of family law scripts which, among other things, brings them up to date with the new Supreme Court Family Rules. The updated scripts address a wide range of family law issues, from divorce and annulment, to custody and guardianship, to child protection and family violence. A new script provides a general introduction to family law and the family court process.

The complete collection of Dial-A-Law scripts can be accessed at www.dialalaw.org or by calling 604.687.4680 in the Lower Mainland and 1.800.565.5297 elsewhere in British Columbia.

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Decision Released in Marriage Commissioner Reference

The Saskatchewan Court of Appeal has just released its decision in a reference from the provincial government, In the Matter of Marriage Commissioners Appointed Under the Marriage Act, 1995.

This reference resulted from the enactment of the federal Civil Marriage Act in 2005 which redefined marriage to include same-sex unions. The Saskatchewan government asked the Court of Appeal whether a legislative amendment to allow marriage commissioners to refuse to perform same-sex marriage ceremonies would be constitutional. In a nutshell, the court said no, holding that to do so would violate the equality rights of gays and lesbians in a manner that couldn't be justified on Charter grounds. This is the summary released by the Court of Appeal:

"The reasoning of the Court is grounded in section 15(1) of the Charter. This provision prohibits discrimination based on various characteristics including sexual orientation. The Court ruled that a law empowering marriage commissioners to deny their services to gay and lesbian individuals would clearly violate section 15(1) as it would treat them differently than other people and would do so in a discriminatory fashion based on their sexual orientation.

"The key issue in the case, according to the Court, was whether this violation of rights could be justified as being reasonable within the special meaning of that term as it is used in section 1 of the Charter. In this regard, the Court held that accommodating the religious beliefs of marriage commissioners could not justify discrimination against gay and lesbian couples. The Court emphasized that marriage commissioners act as government officials, not private individuals, when they perform marriage ceremonies. It also pointed out that the obligation to solemnize same-sex marriages does not affect or interfere with the core elements of a commissioner’s religious freedom: the freedom to hold beliefs and the freedom to worship. In addition, the Court underlined that allowing marriage commissioners to withhold their services because of personal religious convictions would undercut the fundamental principle that government services must be provided to all members of the public on an impartial and non-discriminatory basis."

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