Baby Daddy, Baby Momma - Determination of Paternity Under the Family Law Act

By Michelle Guy, Vancouver Family Law Lawyer at Paine Edmonds LLP

On March 18, 2013, British Columbia’s new Family Law Act comes into force, replacing the former Family Relations Act. The new Family Law Act seeks to legislate presumptive rules around parentage in a society where the structure of the family is moving further and further away from the traditional married, heterosexual parental unit. As families are becoming generally more complicated, so is the law.

Where a child is born in a heterosexual relationship where the parents are married, the father is presumed to be the father. Once presumed to be the father, the onus lies on him to make an application for a paternity test to prove otherwise.

Where a child is born to parents as a result of a donor, such as a same sex couple who utilizes assisted reproduction to have a child, the two same sex partners are the parents of the child and the donor is not. This principle also applies to heterosexual couples who access assisted reproduction as well.

Where a child is born to a surrogate on behalf of another couple, the intended parents of the child and not the surrogate will be the parents of the child only if the surrogate gives permission in writing to both the parentage and after the child is born gives written permission to surrender of the child into the care of the intended parents.

Oddly, the new legislation provides that a father is presumed to be the natural parent of a child if he was married to the mother within 300 days of the child’s birth. In most normal circumstances, a divorce requires the parties to live separate and apart for one year prior to an order for divorce being granted. The average human gestation period, according to Wikepedia, is 259 - 294 days. So, theoretically, a man may have left his marriage a full 624 to 659 days prior to his former wife having a child, and still could be placed in a situation where the onus is on him to prove that he is not the father. Maury Povich anyone?

Property Now, Property Later

By Michelle Guy, Vancouver Family Law Lawyer at Paine Edmonds LLP

At the time of the writing of this post, the division of property upon the breakdown of a marriage is handled very differently under the Family Relations Act than the division of property upon the breakdown of a common law relationship. Married couples have a presumptive right to half of the “family assets”, unless the other party can demonstrate that it would be unfair to not reapportion the division of property in their favor.

Sometimes, there is property that is not automatically subject to division. Current legislation applies a “family purpose test” that allows property to be excluded if it was not used for a family purpose. An example of this would be property that one party owned prior to the marriage that is not used or invested in by the parties during the relationship.

Common law couples, on the other hand, take away only what is registered in their names. If they wish to make a claim on an asset that is registered in the other party’s name, they must make an application seeking a finding of constructive or resulting trust. Put plainly, they have to show that they made a contribution to the property to the other party’s benefit and their own detriment that justifies them having a claim against that property. Arguments seeking a declaration of trust can be very complex and can result in expensive litigation.

The new Family Law Act, that comes into force on March 18, 2013, changes this up. Under the Family Law Act, common law couples and married couples are subject to the same rules regarding division of property. There is no longer a “family purpose test”, and all property brought into the relationship can be taken out by the original party owning that property. However, any growth in the equity or value of the property is subject to an equal division, regardless of whether it was used for a family purpose or not. Any inheritances received during the relationship can be taken out by the inheriting party, subject to division of any growth.

Due to the radical change in the rules surrounding the division of property, there will be a period of growing pains, where the new legislation is tested in the courts and the true effect on separating couples will be refined and clarified. It is anticipated that argument that was once focused on the “family purpose test” and trust arguments will now be replaced with arguments around the exact dates of the start and end of the relationship, and values of assets at both of these points in time.