Navigating the New Amendments to the Family Law Act in BC: Key Changes to Pet Custody, Excluded Property, and Presumptions

On May 11, 2023, the BC government’s proposed changes to the Family Law Act received Royal Assent to become law. The changes aim to modernize the legislation and make it more responsive to the needs of families in BC. Here are some of the key changes:

1.       Presumptions of Advancement and Resulting Trust: Clarifying Property Ownership (sections 81 and 81.1)

The addition of section 81.1 eliminates both the presumptions of advancement and resulting trust respecting the ownership of property as between spouses.

Presumptions are often used by the court if there is not enough evidence presented to determine who owns the property. With the recent amendments, these presumptions can no longer be used when determining who owns what property between spouses.

2.       Pet Custody: Recognizing the Importance of Furry Family Members (sections 3.1, 92 and 97)

Previously, the court has avoided making orders regarding ownership and property of pets and treated them as personal property.

Recognizing that pets are beloved family members, the law now allows for the consideration of pets' best interests when determining their custody during the breakdown of a relationship. This shift acknowledges the emotional bond between individuals and their pets, ensuring that decisions about pet custody are made with their well-being in mind.

When making an order respecting pets or “companion animals”, the court must consider the following:

                (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.

The court, however, cannot make an order of joint custody or ownership of a pet.

The amendments to section 97 will come into force by regulation.

3.       Excluded Property: Protecting Individual Assets (section 85 and 96)

Presumptively, family property is divided equally. However, the Family law Act categorizes some property as “excluded property”. Excluded property often refers to assets acquired before a relationship or during a relationship through inheritance or gifts specifically intended for one spouse. Under the new amendments, the scope of excluded property is expanded to include any increase in value of the excluded property.

If property is deemed as excluded property, the exclusion applies despite any transfer of legal or beneficial ownership of the property from a spouse to the other spouse. Also, the legislation expands on the factors upon which the order may order a division of excluded property.

This change ensures that individuals entering relationships can maintain ownership of assets they brought into the relationship or received as gifts or inheritances. It recognizes the importance of preserving individual financial autonomy and provides clarity regarding the division of assets during the breakdown of a relationship.

4.       Transition Provision (section 24)

The transition provision applies a “bright line” rule on the date of Royal Assent, so that section 81.1 does not apply to pre-existing proceedings and sections 85 and 96, as read before the amendments receive Royal Assent, continue to apply to pre-existing proceedings.

Section 24(1) describes “pre-existing proceeding” as:

(a) a proceeding, under the Family Law Act, respecting property division that was started before the date on which this Act receives Royal Assent, or

(b) a proceeding, under the Family Law Act, to set aside or replace an agreement respecting property division that was made before the date on which this Act receives Royal Assent.

Conclusion

The recent amendments to the Family Law Act in British Columbia represent a significant step towards a more inclusive, comprehensive, and equitable legal framework for families. By recognizing the significance of pets as family members, protecting individual assets through the concept of excluded property, and clarifying property ownership presumptions, these amendments contribute to a fairer and more balanced approach to family law matters.

As these changes take effect, it is important for legal professionals and individuals navigating family law matters to familiarize themselves with the new provisions. Our family law team is here to assist and answer any questions you may have.