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Vancouver and Edmonton Family Law Blog

New Federal Law Legislates First Nations Property Division on Divorce

In June, 2013, the Family Homes on Reserves and Matrimonial Interests or Rights Act (“FHA”) was assented to, and as at December 16, 2013 the ability of First Nations to pass legislation to deal with the division of property on reserves has come into force.  Up until the passage of the FHA, the division of First Nations property was caught in legal limbo, neither covered by provincial legislation, nor referred to in the Indian Act.  With the new law, First Nations will have one year to draft their own laws dealing with the division of reserve property on marriage breakdown or death, as well the use and occupancy of that property.  If a First Nation does not create legislation within that twelve month period, the FHA will impose a regime of property division and use until and unless a new law is created.Concerns are being raised that the imposition of a Federal regime, even a provisional one, harkens to colonialism.  S.7 of the FHA does say that the Federal regime will only be in effect until a First Nation enacts its own law.  However, as matrimonial law is tremendously complex at the best of times, the creation of new property division regimes the time limitation is effectively an at least temporary legislative imposition.From a lawyer’s perspective, there are a multitude of questions which will not be answered until the communities begin presenting their own legislation.  The addition of any new law – Federal, Provincial or First Nations - comes with its own complexities, potential conflicts and interpretations which will have to be determined by the courts over time.

Non-Payment of Child Support: Is it Family Violence?

In the new Family Law Act, the legislature has provided an expansive definition of "family violence" which includes, amongst other things: 1 (d) psychological or emotional abuse of a family member, including (i)  intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property, (ii)  unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy, (iii)  stalking or following of the family member, and (iv)  intentional damage to property, ... In doing so the legislature recognized that psychological and emotional abuse is a form of violence that can occur without any actual physical violence taking place.  The legislature gave the Courts the task of determining if family violence was occurring, and if it was occurring, of using that information to make appropriate decisions about how the children of the separating couple are going to be parented. When the Family Law Act was passed, many lawyers who practice family law wondered how exactly the courts were going to interpret "unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy."  In the recent case of J.C.P. v. J.B., a Provincial Court Judge found that in some cases, non-payment of child support can be psychological and emotional abuse. There has been some criticism of this decision (see for instance Lawdiva).

Same Sex Divorce in British Columbia

Kevin Heinrichs of Henderson Heinrichs was featured in a recent article in the Vancouver Province by Stephanie Ip and Keith Fraser regarding same sex divorce in British Columbia.  With the advent of the Civil Marriage of Non-Residents Act, same sex couples married in British Columbia who are unable to get a divorce where they reside can apply for that divorce in British Columbia without the previously required one year residence.  Heinrichs' point in the article is that, while there might be a brief spike in these types of divorces, any built up backlog of qualified parties will soon be dealt with and it will soon be business as usual.

Bankruptcy and Property Claims

It is important to understand that once someone declares bankruptcy, all his or her rights to bring on claims in court with regard to property vest in the Trustee of that bankruptcy.  Section 30(1)(d) of the Bankruptcy and Insolvency Act, RSC 1985, c.B-3 states that,30. (1) The trustee may, with the permission of the inspectors, do all or any of the following things:(d) bring, institute or defend any action or other legal proceeding relating to the property of the bankrupt;In Tinant v. Tinant, 2003 ABCA 211, the Alberta Court of Appeal reviewed the question and determined that, not only could an undischarged bankrupt not bring on a matrimonial property claim, that bankrupt could not even be assigned the right to bring on that claim by the Trustee.  In the words of the Honourable Mr. Justice Ritter, who penned the decision:
[11]           There are good reasons why the capacity to act is vested in the trustee. First, the assets of the bankrupt are in the control of the trustee. If the proceeding is unsuccessful it is likely that there will be a costs consequence. A costs order against the bankrupt will generally be meaningless. Further if any of the property of the bankrupt is available to satisfy the costs award then it is likely that the property should have been turned over to the trustee. Also, if the bankrupt has legitimate means to raise costs, those means would generally be better spent on contribution to his or her creditors.
 
[12]           Second, one of the purposes of cost awards is to ensure that parties will carefully consider whether there is any merit to a proceeding. When a party is bankrupt that careful consideration is easily set aside as the party is insulated from costs consequences as he or she has already lost all his or her assets to the trustee. Also the party against whom costs consequences have some meaning, the trustee, has already assessed the risks and has determined that the potential benefits of the proceeding are outweighed by the risks of a costs award.
 

Divorce Now Available for Non-Resident Same-Sex Couples

On August 16, 2013, the Canadian Government announced that the Civil Marriage of Non-Residents Act has been brought into force. The new Act allows same-sex couples who live outside of British Columbia to apply for divorce in the British Columbia Supreme Court. The Canadian Parliament passed the Civil Marriage Act in 2005, officially recognizing same-sex marriage in Canada. Many same-sex couples who resided in jurisdictions with no recognition of same-sex marriage subsequently travelled to British Columbia and the other Canadian provinces to wed. Those couples who later wished to become divorced found themselves in a legal conundrum: they could not divorce in their home country because they were not recognized as legally married, but they also could not divorce in Canada because they were not “ordinarily resident” in Canada as required under Canada’s Divorce Act. The Civil Marriage of Non-Residents Act remedies that problem, allowing non-resident same-sex spouses who have lived separate and apart for a period of at least one year to apply for divorce in the province in which they were married. If you are a same-sex spouse living in a country that does not recognize your British Columbia marriage, and you are thinking about a divorce, contact our lawyers at Henderson Heinrichs LLP for advice about obtaining your divorce in British Columbia.Virginia Richards

We're Temporarily Moving!

As of Friday, March 8, 2013, Henderson Heinrichs will be moving to the 20th floor at 1188 West Georgia Street, Vancouver, B.C.  It's only temporary while our regular office undergoes a facelift.

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