New Amendments to the Family Law Act in BC: What Vancouver Family Lawyers Want You to Know

Have you heard about the recent changes to the British Columbia Family Law Act that became law this Spring?

As of May 11, 2023, notable amendments to the Family Law Act on the issues of pet custody, excluded property, and evidentiary presumptions received Royal Assent to become law in British Columbia. The amendments were first proposed by the Attorney General through Bill 17, the Family Law Amendment Act 2023, in late March 2023.

These developments were aimed to clarify common and contested issues that arise upon separation in an effort to modernize laws in our province. They emphasize the importance of the best interests of pets, preserving financial autonomy of spouses, and clear division of assets after separation.

In this post, our team of Vancouver Family Lawyers write to highlight what exactly you need to know and how these changes could impact your family law matter going forward.

1)      Pet Custody: New Consideration of the Best Interests of Our Furry Friends

Then:

The courts in British Columbia have long treated pets as personal property (see e.g., Brown v Larochelle, 2017 BCPC 115 at paras 11­-14). Historically, this meant that pets would be divided upon separation just like other forms of family property—in theory.

However, in practical terms, this resulted in one party being able to keep the family pet because of the fact that the Court could not realistically give effect to each spouse’s presumptive claim to an undivided half interest in a pet.

In court, separated spouses would therefore have to argue that they had a better property claim to the pet in question, as the court had no jurisdiction to approach the division of pets as an issue of “custody” or “parenting” (FKL v DMAT, 2020 BCSC 1296). The court did not consider the wellbeing of the animal, but rather treated a pet as any other asset.

Now (sections 3.1, 92, 97):

Amendments to the Family Law Act now allow for the court to make orders regarding the custody of pet(s) once the court considers factors relating to the best interests of the pet(s). These amendments will come into effect by regulation.

The court must now consider the following factors when making an order respecting pets, or “companion animals” as they now call them:

(a) the circumstances in which the companion animal was acquired;

(b) the extent to which each spouse cared for the companion animal;

(c) any history of family violence;

(d) the risk of family violence;

(e) a spouse's cruelty, or threat of cruelty, toward an animal;

(f) the relationship that a child has with the companion animal;

(g) the willingness and ability of each spouse to care for the basic needs of the companion animal;

(h) any other circumstances the court considers relevant.

 Additionally, an order respecting a companion animal must not:

(a)    declare that the spouses jointly own the companion animal, or

(b)    require the spouses to share possession of the companion animal.

Lastly, sections of the Family Law Act, namely sections 95 and 96, which apply to issues of division of property, no longer apply to the making of an order respecting a companion animal. To avoid the cost of resolving a dispute for pets through litigation, we recommend including terms in a marriage/cohabitation agreement that outline pet ownership and possession upon separation. For more reading on these types of agreements, read our blog posts: 5 Reasons to Get a Marriage Agreement, 6 Reasons to Get a Cohabitation Agreement, Pre-Nups: FAQ.

2)      Clarification and Expansion of What is Considered “Excluded Property”

The Family Law Act defines what is considered “family property” and what is considered “excluded property” upon separation.

In most family law cases, excluded property consists of assets brought into the relationship by one spouse, or assets acquired during the relationship by way of gifts or inheritance directed specifically to one spouse. This prior definition also encompassed property derived from excluded property.

KEY EXPANSIONS (sections 85 and 96):

The noted amendment to the Family Law Act now expands upon this prior definition of excluded property to also include:

• Property deemed as excluded property, even if legal or beneficial ownership has been transferred from one spouse to another.

Amendments to section 96 expand on the circumstances in which the court may make an order for the division of excluded property.

• The court may make an order for the division of excluded property if it would be significantly unfair not to divide excluded property on the consideration of the duration of the relationship between the spouses and a spouse’s direct contribution to the preservation, maintenance, improvement, operation, or management of the excluded property.

We recommend crafting marriage/cohabitation agreement in a way that clearly defines what property would be excluded if you and your spouse were to separate.

3)      Presumption of Advancement and the Presumption of Resulting Trust – No More!

Historically, the presumption of advancement and the presumption of resulting trust applied in cases where the court lacked sufficient evidence to determine who was the owner of property upon separation.

Then:

Both presumptions used to remain in effect in BC through common law, up until these recent amendments.

• The presumption of advancement assumed that when one spouse transferred property to another, it was considered a gift (unless there is enough evidence otherwise). In these cases, the transfer became the sole property of the recipient spouse.

• The presumption of resulting trust assumed that if a parent gratuitously transferred assets to an adult child (either jointly with the parent or in the child’s sole name), the transfer was made so that the child could hold the property in trust for the parent’s estate. This meant that the property was assumed to remain part of the deceased’s estate instead of being passed to the adult child.

Now (sections 81 and 81.1):

Amendments to the Family Law Act added section 81.1 to eliminate both of these presumptions in BC. Courts will no longer use these presumptions when evidence is lacking.

Our team of Family Lawyers are ready to answer any questions you may have about transfers of property and divisions of assets upon separation.

Do These Amendments Apply to My Case? (section 24)

The amendments affecting pets will come into force by regulation later this year.

If your legal proceedings relating to property division began before the amendments came into effect (before May 11, 2023), then the old rules still apply. Similarly, if you are trying to vary an agreement made before May 11, 2023, then the old rules apply.

If you began proceedings relating to property division, or made an agreement respecting property, after May 11, 2023, then the new amendments apply to your case.

Amendments respecting the presumptions of advancement and resulting trust do not apply to cases started before the amendments were official.

Conclusion

Vancouver Family Lawyers are happy to see these developments in British Columbia’s Family Law Act as they reflect more comprehensive guidance for families upon relationship breakdown.

Questions about any of the information in this post?

Our dedicated team of Family Lawyers is here to assist you! We can promptly answer any questions you may have on how these amendments relate to your family law matter.

Want to learn more? Please contact our team of Vancouver family lawyers for a consultation.

The material provided in this blog is for general information and education purposes only and does not contain, and should not be construed as containing, legal advice applicable to a particular set of facts. If you require legal advice, please contact us for a consultation.