Leg­is­la­tion aims to clear up prop­erty divi­sion rules

Com­mon-law cou­ples de­serve con­sis­tent laws deal­ing with sep­a­ra­tion, Gan­ley says

Calgary Herald - - CITY + REGION - CLARE CLANCY [email protected]­media.com twit­ter.com/clare­clancy

Un­mar­ried cou­ples in the process of split­ting up will have clear-cut prop­erty divi­sion rules un­der new leg­is­la­tion tabled Wed­nes­day.

Cur­rently no such rules ex­ist, and com­mon-law part­ners face costly and time-con­sum­ing le­gal bat­tles to di­vide prop­erty after a breakup, said Jus­tice Min­is­ter Kath­leen Gan­ley.

“Many un­mar­ried cou­ples be­lieve that Al­berta al­ready has clear laws for fairly di­vid­ing prop­erty if a re­la­tion­ship breaks down,” she said at a news con­fer­ence. “Peo­ple de­serve clear and con­sis­tent rules that treat all cou­ples fairly.”

The bill ap­plies to un­mar­ried cou­ples who qual­ify as “adult in­ter­de­pen­dent part­ners,” re­fer­ring to peo­ple who live to­gether for at least three years, or have a child and a re­la­tion­ship with some per­ma­nence, or have en­tered into a part­ner agree­ment.

Lau­rie Allen, part­ner at Allen Hryniuk Law Firm, said le­gal dis­putes when com­mon-law re­la­tion­ships end can last for years.

“We’re book­ing tri­als in 2020 now, that’s be­cause the court sys­tem is over­whelmed with lit­i­ga­tion,” Allen said. “In my ex­pe­ri­ence, I haven’t seen a case go from start to fin­ish in any time less than three years and un­der $100,000.”

The new rules would gen­er­ally evenly split prop­erty ac­quired dur­ing a re­la­tion­ship, and part­ners can make the claim within two years of break­ing up. But the leg­is­la­tion also leaves room for cou­ples to draft sep­a­rate agree­ments if they want to opt-out.

‘DE­MEAN­ING PROCESS’

Allen said the leg­is­la­tion will be more im­pact­ful on the part­ner who has less prop­erty.

“The un­for­tu­nate so­cial re­al­ity con­tin­ues to be in 2018 that in re­la­tion­ships, men tend to earn a lot more money. Women are more likely to earn less money be­cause of child care,” she said.

“The fact is in the over­whelm­ing num­ber of ... het­ero­sex­ual cou­ples, it will be the woman say­ing ‘I don’t have any as­sets in my name, we’ve been to­gether 20 years.’”

In same-sex cou­ples, often one part­ner will have ac­cu­mu­lated the lion’s share of the prop­erty, she added.

“It can be a very de­mean­ing process for the spouse who is less eco­nom­i­cally pow­er­ful.”

The Cana­dian Bar As­so­ci­a­tion has long been con­cerned about the “leg­isla­tive gap,” said Frank Friesacher, pres­i­dent of the Al­berta branch.

More than 300,000 Al­ber­tans are in com­mon-law re­la­tion­ships ac­cord­ing to the lat­est cen­sus data, he said.

“Cur­rently the law re­quires the judge to an­a­lyze in de­tail who con­trib­uted what through­out the re­la­tion­ship, often years after the fact,” Friesacher said. “Some may choose to set­tle for far less than their fair share, or to not pur­sue a claim at all.”

Other ju­ris­dic­tions with sim­i­lar laws to Al­berta’s new leg­is­la­tion in­clude Bri­tish Columbia, Man­i­toba, North­west Ter­ri­to­ries, Nova Sco­tia, Nu­navut, Que­bec and Saskatchewan.

If passed, the act would take ef­fect Jan. 1, 2020. The dead­line will al­low time for a pub­lic aware­ness cam­paign, Gan­ley said.

The pro­posed leg­is­la­tion also re­peals the Mar­ried Women’s Act, an an­ti­quated bill en­acted in 1922 that made it pos­si­ble for mar­ried women to as­sert their prop­erty rights in­de­pen­dently of their hus­bands.

“It high­lights, too, how far we’ve come,” Gan­ley said.

The bill also amends the el­i­gi­bil­ity cri­te­ria for adult child sup­port so that for­mer com­mon-law part­ners can more eas­ily make claims for their chil­dren with dis­abil­i­ties.

Pre­vi­ously, the Fam­ily Law Act lim­ited child sup­port claims to adults be­tween 18 and 22 years of age, or full-time stu­dents. The pro­posed bill brings that piece of leg­is­la­tion in line with what was out­lined in the fed­eral Divorce Act, mean­ing fam­ily law claims can be made in sup­port of adult chil­dren who need care be­cause of ill­ness, dis­abil­ity or other causes.

“It’s been a re­ally long, hard bat­tle to reach this mo­ment,” said Christina Ryan, who said her 19-year-old daugh­ter con­tin­ues to need sup­port be­cause of dis­abil­i­ties. “Pre­vi­ously, fam­i­lies like mine fell through the cracks.”

Those changes would come into ef­fect when the bill gets royal as­sent.

JA­SON FRANSON /THE CANA­DIAN PRESS

Al­berta Jus­tice Min­is­ter Kath­leen Gan­ley says new pro­vin­cial leg­is­la­tion is de­signed to make the law clear on prop­erty divi­sion be­tween com­mon-law cou­ples who have split up.

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