Date of this Version

2012

Document Type

Miscellaneous Material

Publication Details

Wade, J. (2012). Family property reform in British Columbia— the rule of discretion and the discretion of rules. Delivered at British Columbia University Law Faculty, 1-32.

© Copyright John Wade, 2012

Abstract

This paper provides a helicopter and speculative view of the new property division sections of the Family Law Act (FLA) 2011 in British Columbia, Canada. The comments are made from the perspective of an outsider, from his experience as a lawyer, mediator and family law reform adviser particularly in Australia. The paper assumes that all family property reform laws necessarily address similar international and historic patterns of family behaviour, with a predictable range of solutions on a rule-discretion spectrum in different cultures and regions. The paper relies upon various assumptions that are based upon international trends. All of these assumptions may be confirmed or qualified by statistical studies and anecdotal reflections in BC and the rest of Canada.

The paper suggests that:

• The FLA initially provides that rules with a degree of certainty will govern the division of family property in BC in the future. In reality, rules travel in pairs. The vast majority of marriages and relationships will be governed by vague and currently unknown mystery maths. However, there are some standard and helpful templates for each line of uncertainty.

• At least a decade of mystery maths will have some unintended social consequences.

• Added pressures to the stressed court system, and other factors in BC, will predictably lead to a decrease in the number of awards, agreements and variations of spousal support (both “compensation” and “needs” based). This is a shift away from periodic, lifelong and variable towards (cyclically once again) more lump sum, short term and clean break spousal support.

• Another consequence of the high transaction costs of narrowing down the new mystery maths will be that in BC, there will be one form of family property “settlement law” for the rich, and another for the poor and middle class.

Included in

Law Commons

Share

COinS
 
 

To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.