A fresh perspective on divorce, spousal support, child support, parenting after separation and everything family law

Hello Family Law Act, Goodbye Family Relations Act: upcoming in 2012 and 2013

In the next (approximately) 12-18 months the new Family Law Act will come into force, replacing the Family Relations Act…The Family Law Act was passed in British  Columbia’s legislature on November 23, 2011 and it received Royal Assent on November 24, 2011.  There were some changes that came into effect on November 24, 2011 including the repeal of the obligation to support parents (Section 90 of the Family Relations Act), the repeal of provisions regarding property agreements (section 120.1) and changes to a number of BC acts to use the gender neutral terms when discussing spouses.

The provision regarding parental support was in the news last year when a BC woman sued her adult children for support.

Exclusive Occupancy of the Family Residence: what is a “practical impossibility”?

After separation it is difficult for spouses to remain the same residence in most cases.

While it is usually much quicker and cheaper to resolve the matter of who is going to live where by agreement, in British Columbia, if spouses cannot come to an agreement about who is going to remain in the family residence (and who is going to leave) the spouse who wishes to stay in the residence (without the company of their estranged spouse) can bring a court application to for interim exclusive occupancy.

The Family Relations Act sets out that one spouse can seek a court order for interim exclusive occupancy of the family residence.  To be successful the spouse seeking exclusive occupancy need to show:

  • shared use of the home is a practical impossibility; and

    House too full? Photo courtesy of mlabowicz -flickr

  • on the balance of convenience the they are the preferred occupant.

A question arises – what is a practical impossibility?  Practical impossibility could mean many things – for example, I consider a day without coffee a practical impossibility.

The courts have considered different circumstances that spouses have alleged create a practical impossibility leading to that spouse being awarded interim exclusive occupancy of the family residence.

In a recent Supreme Court of British Columbia decision a wife alleged her husband engaged in behavior, including but not limited to, the following,  which created a practical impossibility:

  • growing marijuana;
  • leaving a women’s phone number by the bed;
  • leaving antifreeze in a place the wife’s dog could have consumed it;
  • making noise at night;
  • violating privacy by trying to access a personal computer and going into the wife’s room;
  • engaging in violence against the wife;

The court found that if the main allegations were proved it could have been easily concluded that there was a practical impossibility but, given the conflicting evidence, such a conclusion could not be made.

In another case, the court found that the wife’s evidence  of health problems caused by remaining in the same house as her husband did not establish a practical impossibility, however, the court had an obligation under the Divorce Act the Family Relations Act and the Law of Equity Act to consider the best interests of the children.   It was found by the court that the impact of the parties disagreements on the children made it a practical impossibility for the parties to remain in the same home.

The Court has decided that it is the burden of the spouse claiming exclusive occupancy to prove the practical impossibility.  Once a practical impossibility is established, the Court is to consider the balance of convenience.