In the early days of Whistler life was innocent. A music festival consisted of a flat deck truck hauled into a field at Tapley’s. Nobody worried about liquor licences or the distinct smell of Ross’s Gold wafting through the air. Lovers changed partners as frequently as the wind changed on Alta Lake. Children of sometimes-uncertain parentage ran around barefoot in home-sewn floral print dresses.
Times are changing in British Columbia. On March 18, the new Family Law Act comes into effect. The Act may turn some of Whistler’s more relaxed living arrangements upside down.
Under the old law, only married spouses were automatically entitled to a share in family property. The assumption was that separating spouses would each be entitled to one half of the family assets. Either party could argue that an equal division was not fair, but the starting point was a fifty-fifty split. It did not matter who actually owned the home, cottage or financial investments. They were all on the table at the end of the marriage. It was up to the party who thought that equal sharing was unfair to make their case to a skeptical Supreme Court judge.
The problem was that the same rule did not apply to common law couples or gay couples, no matter how long they were together or how hard they had worked. When a common law or gay couple separated, the ownership of the assets became a crucial issue. If the house was in the common law husband’s name, legally it was his house. It was then up to the common law wife to prove that she had made a contribution to the house and was entitled to a share. That then led difficult questions like “how much contribution?” and “how big the share?” Those questions have resulted in some nasty and horrifically expensive litigation around the valley.
Under the new Act the legal distinctions between married, common law and gay spouses are gone. If two people live together ”in a marriage like relationship” for two continuous years, they are “spouses.” Once they become spouses, whether married or not, they are each entitled to an equal share of the family assets. The court can divide the family assets to something other than equal shares if equal shares would be “significantly unfair.” How unfair is significantly unfair is not clear.
The danger in Whistler lies in how easy it is to slide by increments into what a judge might be convinced was a “marriage like relationship.” Arguments like “I only slept with her for a couple of years until she went back to school,” or “he said he was leaving and I didn’t have the heart to kick him out,” will fall on deaf years. She may be going back to school, but she’s taking the RRSPs with her.
In Whistler the single biggest cause of marriage breakdowns is financial stress. It is not unusual for one parent to leave Whistler for a location where they can make a better living. Under the new Act if the departing parent happens to be the parent with whom the children live, that parent can no longer assume that they will be able to simply take the children with them. The departing parent must give the other parent at least 60 days notice before moving the children. If the other parent objects, the departing parent will need to prove that the move is “in the best interest of the children.” The presumption will be that the children should enjoy substantially equal parenting time with each parent. A departing parent who wishes to relocate the children will need to overcome the presumption of equal parenting time.
The innocence is gone. Under the new Act the status of spouse will sneak up on many people. Separation will be more difficult and more costly, particularly if there are children involved. Happy Valentine’s Day!