Family Law Guest Lecture Flashcards
2013 Family Law Act BC
old act hadnt been amended since 1970s, this new act changed some things:
emphasis on out of court settlemetns, attention to violence, stronger articulation of childs best interest, removal of custody from family law act (in divorce act), considers new reproductive technology, expansive definition of family violence. Shift in how property is divided upon relationship breakdown - now excluded property model and includes debt.
Now to argue against 50/50 split it has to be SIGNIFICANTLY unfair, not just unfair.
Feminization of poverty connected to Property division
Women and children worse off after divorce. Gendered outcome of breakdown.
Murdoch v Murdoch
Woman married claimed declaration of trust. Husband owned farm she couldnt get access to. Sued in trust for access but unsuccessful. Made it apparent that there is a need to divide property after marriage breakdown.
2 important cases : derrickson and derrickson and paul v paul
these said that fam law not applicable to land held in a reserve by indian.
Exclusively federal pursuant to indian act. 91(24)
Laws for division of property do not apply on reserves.
There is a new federal act for div of property on reserves. It hasnt been very supported by indigenous.
Family Homes on Reserves and Matrimonial Interests or Rights Act
walsh v bona, and quebec v A.
To exclude common law couples from regimes re marraige is discrimination, but NOT with respect to div of property
Suing in constructive trust
What you do if you arent opted in to marriage/marriage like
Some say these cases on constructive trust are not relevant since the 2013 shift.
However may be relevant in the case of property such as a home that was brought into the relationship and would technically be excluded. Can sue in constructive trust.
Tracing
Old act had concerns around tracing ie buying something new with money from sale of old. New act it is irrelevant, BUT becoming an issue.
What is included in the property to be divided?
Gifts from spouse are in (gifts from others are not), excludes any property brought into the relationship, includes increases in value. Investments, debt, hobby collections, all included if acquired during relationship but excluded if not.
