Orders of the Day

Hon. R. Kahlon: In the main chamber, I call Committee of the Whole for Bill 17, the Family Law Amendment Act.

In committee room A, I call continued debate in Committee of Supply for the Ministry of Forests. After that completes, the Ministry of Labour will begin.

In committee room C, I call continued debate in Committee of Supply for the Ministry of Environment and Climate Change Strategy, and after that completes, the Ministry of Energy, Mines and Low Carbon Innovation will begin.

Committee of the Whole House

BILL 17 — FAMILY LAW
AMENDMENT ACT, 2023

(continued)

The House in Committee of the Whole (Section B) on Bill 17, Family Law Amendment Act, 2023; S. Chandra Herbert in the chair.

The committee met at 2:26 p.m.

The Chair: We’ll just take a short recess to allow all the appropriate parties to get into place.

The committee recessed from 2:27 p.m. to 2:32 p.m.

[S. Chandra Herbert in the chair.]

The Chair: All right, Members. I’d like to call this committee into order. We’re looking at Bill 17, the Family Law Amendment Act, 2023.

Hon. N. Sharma: I want to please welcome to the House Darryl Hrenyk, legal counsel, and Aurora Beraldin, legal counsel, both from justice services branch of my ministry.

On clause 1 (continued).

M. de Jong: In my zeal last day to get into the details of pets and companion animals, I neglected to do something I always try to do on these bills, and that’s quickly, in clause 1, canvass with the minister any procedural aspects that have led to the development of the legislation and the specific sections and its presentation here.

I don’t have many questions. In the earlier bill we discussed, I asked about the request-for-legislation process and whether that had been followed. I’ll ask the same question here: whether the amendments to the Family Law Act that we’re dealing with are the product of a request for legislation that was developed and subsequently approved and submitted to leg. counsel.

I imagine, though I don’t know this, if that happened, it predates this Attorney General’s arrival on the scene. But I’m more interested in the process than I am in the individuals involved.

Hon. N. Sharma: The answer to that question is yes. We had an RFL process, as you described, and we also had consultation after that. It predates my time.

M. de Jong: Is the procedure as it once was? In the case of legislation, Attorney General’s legislation, does it involve, with respect to the RFL, the Attorney General of the day signing off on that document prior to it being advanced?

Hon. N. Sharma: Yes.

[2:35 p.m.]

M. de Jong: A couple of questions on legislation of the sort, the general issue here being the division of property, including, as we began to discuss last day, property in a companion animal.

The minister used a word a moment ago — consultation. What type of consultation was conducted with whom? Did that happen prior to the finalization of the RFL or subsequent to the signing off of the RFL?

Hon. N. Sharma: We had a very extensive consultation process that began prior to the RFL. That involved a technical discussion paper for family law practitioners, as well as a plain-language backgrounder summarizing issues for the general public. That involved a plain-language survey that the public was invited to fill out online.

We received 92 responses to the online survey and 16 individual submissions from individuals or organizations that were obviously more established institutions, places like Legal Aid B.C. and the Law Society of B.C.

After that, we drafted the RFL. Then after the RFL, we had an advisory group of experts who assisted in the development and drafting after the RFL up to today.

M. de Jong: Thanks, that’s helpful.

The advisory group, I take it, would have been involved in some of the more specific language. I’m not going to use the word “drafting,” because leg. counsel would ultimately have responsibility for the drafting. But I take it that the advisory group really devoted itself to the nuts and bolts of what is before us.

So two questions. I don’t want the minister to read off a phone book here, but if it’s a manageable-sized group, is she able to advise who was on the advisory group? I’ll start there, and then I’ll come back to the next question.

[2:40 p.m.]

Hon. N. Sharma: Just to clarify the first part of it, the group did actually participate in development and drafting of the amendments. I’m going to take the answer for whether or not we can list the names of the individuals that were on there on notice, because I want to clarify that we have their permission, under the agreements we have, before I list them. It’s just to say they were practising lawyers and organizations like Rise Women’s Legal Centre, the B.C. Society of Transition Houses and CBABC representatives. Others were private lawyers, though, and I can confirm that.

I also want to just add that one of the things that I wanted to mention about our consultation was our Indigenous engagement. Public consultation materials were sent to all individual First Nations, the B.C. First Nations Leadership Council, the First Nations Justice Council and the Métis Nation as well as other Indigenous organizations, such as the Native Courtworker and Counselling Association of B.C., as well as Indigenous family law lawyers.

M. de Jong: Hon. Chair, the Attorney has anticipated my next area of interest. Let’s come back to the First Nations–Aboriginal component to this. I think we’re still all learning about how, in the development of laws of general application, that consultative process is evolving and how it’s functioning.

Back to the working group, I understand that the Attorney is trying to ascertain whether names can be released, and I’m interested in that. I’m probably more interested in the agencies they represented. The minister has mentioned the Canadian Bar Association, B.C. section, and, presumably, the family law practitioners, but maybe she could indicate, on the record here now, which organizations were part of the working group.

[2:45 p.m.]

Hon. N. Sharma: Just to provide some further clarity on our consultation processes, I’m learning it was very extensive.

The groups that I just read out and I’ll read again…. Rise Women’s Legal Centre, B.C. Society of Transition Houses, West Coast LEAF, CBABC as well as the First Nations organizations I read out before were all consulted.

There was a different advisory group for part 5 than part 6. With property division, it was part 5. With part 6, there was the consultation conducted by the British Columbia Law Institute.

We had a group of advisory committee members just on the pension. I do have the list of people, which, I’m told, is actually also public, on the pension division report. That’s online. If you would like, I could read those names right now: Colin Galinski; Stephen Cheng; Stephanie Griffith; Gail Johnson; Margaret H. Mason, KC; Jacqueline McQueen, KC; Cynthia Callahan-Maureen; Pierre-Luc Chénier; Darryl Hrenyk — he’s right here; Hon. Peter Leask, KC; Beatrice McCutcheon; and Michael Peters.

M. de Jong: I take it the list of names that the Attorney has just read out, for the committee’s benefit, is related to the working group on the part 6 amendments. The Attorney is indicating that that’s the case.

It sounds like, from our brief exchange here, that two things happened. I mean this as a question. I just want to make sure I’m understanding this correctly.

There was a working group for the part 5 property division amendments and a working group for the part 6 pension division amendments. Then, in addition to that, there were some separate consultations that took place. The minister has mentioned First Nations organizations.

Do I have the construct correct, if I’m thinking in those terms?

Hon. N. Sharma: Yes.

M. de Jong: I’m going to ask…. I don’t want to leave the impression with the Attorney that I received a comment or complaint in this particular instance, because I did not. I have in other instances.

The concern goes like this, from Aboriginal representatives, First Nations, who say: “Yes, we got notice. Yes, we got an invitation to comment, but we weren’t involved in the working group. It seemed to be a separate thing.”

I think the concern — again, not having been expressed in this particular circumstance but in others — is where a First Nation representative or an Aboriginal person says: “Yes, we’re getting the letter, the invitation, but we’re still left with the impression that the real work is taking place somewhere else, which we’re not directly involved with.”

I guess, in this case, that would lead to the question: was there Aboriginal representation on either of the two working groups that the Attorney has mentioned?

[2:50 p.m.]

Hon. N. Sharma: I’ll start by saying the First Nations–​specific engagement is a separate process that, obviously, we take very seriously.

That went to all individual First Nations, the B.C. First Nations Leadership Council, the justice council and the Métis Nation directly for that. We did invite two Indigenous family lawyers to participate in the working group, particularly for part 5.

This is a phased process. So we’ll be updating different parts of the Family Law Act in different phases. The response was that these particular phases — the three things that we’re changing here with companion animals, property division and pensions — were not a priority for their participation. So they declined to participate in the actual advisory group. We suspect that for other phases of this act, that answer might change.

M. de Jong: Sorry, I was unclear on who “they” is.

Hon. N. Sharma: That was the specific Indigenous family law lawyers that were invited to participate on the advisory group.

M. de Jong: Sorry, I may be asking these questions clumsily.

The Attorney has referred to two members, Aboriginal lawyers from the family bar, who were invited to participate on one or both of the working groups that she has identified for the committee.

Is it the Attorney’s information from the committee that, in both instances, they declined to participate?

Hon. N. Sharma: It’s correct. It was two Indigenous family law lawyers that I was referring to.

They are participating in the phase 2 component, at that level, in the working group but had indicated, with the three particular amendments in this phase 1 related to companion animals, property and pensions…. They weren’t priority items for them to participate.

M. de Jong: They were invited in their personal capacity, as opposed to as a representative of any particular group.

Hon. N. Sharma: Yes, they were participating in their own capacity. I think that was your question.

[2:55 p.m.]

M. de Jong: Then with respect to the other consultative efforts that were made vis-à-vis Aboriginal organizations, First Nations, Indigenous organizations, in this case…. How does that work practically? At what point…?

The Attorney has mentioned…. For example, all First Nations were notified. The Métis Nation of B.C. was notified. The First Nations Leadership Council was notified. So what does that mean? Were they provided with…? Well, I guess I should ask: what would they have been provided with to comment upon and in what form?

We’re talking about awfully technical areas of the law that, to an average person, would be difficult to convey. One can make it more understandable by making it more general, but then you kind of lose the point about what the significance of the proposed changes are.

What is sent out and when in the exercise?

Hon. N. Sharma: Okay. Here is kind of a list of more details of the process. This would have been prior to the RFL.

All First Nations did receive all consultation materials. That meant the technical materials I talked about earlier, the plain-language documents, including the backgrounders, and the survey that was available to the public. That is the list of all the materials that were provided to all First Nations.

[3:00 p.m.]

M. de Jong: So fair to say that the documentation that would have been available to the general public prior to the finalization of the RFL would have been sent either electronically — probably electronically, these days — to the First Nations, to the Métis Nation B.C., to the leadership Council. They would have received directly the public package that was otherwise available. Is that correct?

Hon. N. Sharma: Yes.

M. de Jong: At some point, the government decides…. On the strength of whatever it hears from the various peo­ple and through that period, it decides to finalize an RFL. The Attorney of the day signs off on it. Does that trigger any additional engagement with the First Nation groups that the Attorney has mentioned and that I’ve repeated?

All to say, at a certain point, we, by necessity, move from a more general expression of intent, plain language…. Government is looking at property division aspects of the Family Law Act and is considering amendments to that act. Eventually, that evolves into something more specific — instructions contained in the RFL. Does that trigger, then, a second round of engagement with the Indigenous organizations and First Nations?

Hon. N. Sharma: Because of the phased nature of the amendments that we’re approaching the Family Law Act in — and this is just phase 1 — I think you can view it as kind of an ongoing engagement. So it’s hard to draw a line.

I’ll just give you an example of how that’s showing up, particularly for First Nations. When we did our first round of consultation — I mentioned that we sent those materials out — one First Nation identified that they would like us to look at the cultural significance of property upon division as a factor. Because that triggered a new aspect that could be particular to First Nations, we then sent out engagement letters back to all First Nations to ask them what they thought about provisions that would relate to the cultural significance of property on division, just to say that it’s an ongoing engagement process.

[3:05 p.m.]

Plus, we have interest in the second phase of some of the aspects that are coming up, like…. I think it’s child custody and other aspects of the Family Law Act. We’re constantly communicating with different things with relation to this, and we did offer to all First Nations a copy of the draft bill.

M. de Jong: All right. Well, that’s helpful, because the notion of cultural elements to property division in communities or cultures that are, in some cases, matriarchal versus patriarchal…. I don’t purport to be anything close to an expert on what the legal significance of that could be in the context of property division, except I’m alive to the possible relevance or significance.

The reason I wanted to explore this, as I said at the outset, was that I think we’re all still trying to secure a better understanding of what the operationalization of UNDRIP really entails in terms of the development and passage of legislation in this chamber, particularly, I think, when it’s legislation that we can all see as having to understand has a direct impact or a specific impact on Aboriginal people, Indigenous people and First Nations.

The broader question relates to laws of general application that may have a unique type of impact. The challenge for any group is: they get a general invitation to provide feedback on the general issue. Then, over time, through the processes that exist within government that the Attorney has described, things get refined to the point where we get an RFL, and then we get draft legislation.

I was interested in the last thing the Attorney said, which is that at a certain point, all First Nations in B.C., Métis Nation B.C., the First Nations Leadership Council were offered a draft copy of the legislation prior to its introduction in the House.

That’s interesting, because that’s about as specific a disclosure as one could make about pending legislation, which is to show the draft bill. When did that happen, in this context? Is that kind of standard operating procedure now for legislation that comes before the House?

[3:10 p.m.]

Hon. N. Sharma: The process that we undertake when it comes to legislative drafting and the work that we do on the legislation with First Nations is to engage early, regularly and often. That’s the ideal process. What I can say is that through that process, some First Nations are going to be interested in engaging with us in the process for that particular matter, and some aren’t. It’s just that there’s diversity across the province.

For example, for this one, the Tsawwassen First Nation has existing confidentiality agreements we work through together. We did disclose the draft legislation to them, and they reviewed it. Other First Nations didn’t take us up on that offer. So it’s really a different experience depending on the importance of the issue to that nation. I suspect with this phase 2, it will also be different in terms of what comes from that.

M. de Jong: Well, two things that flow…. I think it imminently logical and sensible that, depending on the issue, different First Nations and Aboriginal groups will have a different level of interest, a different ability to devote themselves, depending on their capacity and what’s going on in their community.

The reason I pursued this: I thought I heard the Attorney say a few moments ago that in this instance, draft copies of the bill had been forwarded to all First Nations. What I think she just said is that in this case, actually, she mentioned one First Nation, the Tsawwassen. Again, I’m just trying to get an idea of that. Which was it? Was it a smaller group? Or did a draft copy of the bill go to everyone?

Hon. N. Sharma: Thanks for allowing me to clarify this. What I said was the draft was offered. What that means is that different…. There was an offer for them to engage in the process, up to viewing a draft and working with us on it. Only some had taken us up on it. I gave the example of Tsawwassen. Hopefully, that clarifies it.

M. de Jong: Something else the Attorney mentioned was that it was easier to advance that work with the Tsawwassen First Nation because of existing confidentiality agreements. Is that a prerequisite to sharing a draft bill with a First Nation or Indigenous organization — the conclusion of a confidentiality agreement?

Hon. N. Sharma: Yes.

M. de Jong: What does that allow? More being curious about this in other contexts, not just the Aboriginal context. I’ll ask the question, recognizing that there are some other phases to this project coming up that may be of more interest to people than the two or three areas that we’re dealing with here today in this legislation.

When a First Nation signs a confidentiality agreement, presumably they are interested in examining the contents of a draft law that is slated for consideration here. They’re probably also interested in getting some feedback from their community and people within their community. How do they do that? Are they able to share the contents of the draft bill with members of the community? Or are they restricted by what they can discuss?

[3:15 p.m.]

Hon. N. Sharma: Of course, it depends on the contents of the confidentiality agreement. Many confidentiality agreements that we have with First Nations allow for the type of community disclosure that the member asked about.

M. de Jong: In a situation where the draft bill is sent out, would that occur after the bill has been reviewed by the government legislative review committee and has been finalized for introduction?

Hon. N. Sharma: Just by example…. I think it helps to illustrate it. If you, under a confidentiality agreement, provide the draft legislation to the other side, the way that they’re generally constructed — it depends on each scenario, I guess — the people that have signed the confidentiality agreement can read the draft legislation in its whole. Then they can talk about the issues with their community, which they may have to consult on.

I’ll just give you an example. We talked about the cultural property. This is an example where a First Nation has identified an issue that they would like to discuss further. They’ve asked for us to give them time to take that issue back to their community and talk about it. How does it show up in their families, especially when families break down, to give us advice on it?

It’s really kind of a back-and-forth with the communities, but the issues are what we want to hear from when it comes to communities — how they show up and what they think needs to be implemented into the legislation.

M. de Jong: I realize that this is getting a little bit myopic in terms of the procedure, but it’s a good chance — on a piece of legislation where, I think, it doesn’t sound like it provoked a lot of controversial feedback — a good context within which to better understand how this works.

I asked about LRC because — it may be different now — there was a time when for the legislative review committee, after the request for legislation had gone to legislative counsel and the drafting work had been done, the draft bill would come back to the minister — in this case, the Attorney General. It would then undertake a final review through the legislative review counsel.

My question was whether…. I’ll use the term “First Nations,” but I mean that broader group of Indigenous groups that may have interest. If a First Nation indicates they have interest in seeing the draft legislation before it’s tabled in the House, would they see the draft legislation after it has been reviewed by leg. review counsel?

Hon. N. Sharma: It would be before that.

M. de Jong: It is not unheard of that upon closer re­view…. I imagine the government has a legislative review committee that comprises other ministers and private members within the government. I don’t know who’s on it. It’s conceivable, and it has certainly been my experience, that the reason for that body to exist is to contemplate changes or to examine and determine whether there are any provisions of the bill that do not enjoy the support of that group or that need to be changed. If that happens, does that provoke a need…?

[3:20 p.m.]

If a change occurs through the legislative review committee process, does that trigger, in the government’s mind, an obligation to alert an interested and involved First Nation and resubmit what would then be an amended piece of legislation?

Hon. N. Sharma: I’m speaking very hypothetically here because it didn’t happen in this scenario. I don’t know of an example of when this happened.

Let’s say that the LRC did make a substantive change to a piece of legislation that we deemed substantive enough. Then, I guess, the proper process would be to seek permission from that cabinet committee to go back to those groups and talk about it, and potentially another LRC meeting. You might have to delay the process until you’ve talked with them.

But this is all hypothetical, and it definitely did not happen in this case.

M. de Jong: Again, I’m just trying to ascertain how these evolving consultative processes now work.

Is it a question of permission from the LRC? It strikes me that the mandate for the LRC is to sign off for the government on whether or not the legislation accomplishes the stated purpose and to check the drafting. If the LRC determines that’s not the case, I guess that’s their mandate. If it triggers a substantive change, as the Attorney has pointed out, whether or not that triggers additional consultation with interested First Nations is, I guess, for the minister and the government to determine. I’m curious to know. It sounds like that’s her view: that it would. But I’m curious to know that.

Hon. N. Sharma: I feel that we’re straying a little bit from the clause and the legislation. But I will say that there is a process for if the LRC does make changes for it to come back to the LRC again. I’ll leave it at that.

M. de Jong: Sorry. I should try to be clear on what my very limited interest in this is. I understand the role — I think I do — of LRC and the fact that a bill can sometimes make multiple trips to LRC to presumably try to improve the product to a point where the government is comfortable introducing it.

My only interest in this is…. We’ve had a bit of a conversation about the level of engagement and the proces­ses followed with First Nations and Indigenous peoples. All I’m trying to ascertain is…. There is this body, really close to when a bill is being tabled — at least, that was my experience — that can say, “No. We want changes,” or: “We are asking the minister to make changes before we approve it for tabling.”

If that happens…. My experience is that if it’s a substantive change, it usually relates to one or two sections, or clauses as we now refer to them. There are often typographical mistakes that I would not characterize as substantive.

[3:25 p.m.]

But if the LRC says, “No. We think there’s a substantive provision that we need a significant change to,” and it changes the impact of that particular section of the bill, or the bill in its entirety, does that provoke an additional round of consultation with First Nations?

[J. Tegart in the chair.]

Hon. N. Sharma: The question posed by the member is so hypothetical that without a specific example, it’s hard to answer. It would depend on how substantive the provision was, whether or not the previous discussions with First Nations led the decision-makers to believe that it was substantive in terms of their opinion. Then there is a process for things to go back to LRC if needed.

Clause 1 approved.

On clause 2.

M. de Jong: We had a bit of a conversation about this last day, and I don’t know that we have to have much longer of a conversation except to, perhaps, confirm the relevance of whether or not an animal is a companion animal or an animal that is kept as part of a business or kept for agricultural purposes.

The example I gave was the herder dog, which, in many cases, plays a role both as a family pet and as a working part of a farm. As I recall, the Attorney made the valid point that if it were asked to rule, it would be for the adjudicator to make that determination based on the evidence.

I think I agree with that, but the significance is this: if the determination is that it is a companion animal, as I understand it, the option still exists for the parties themselves to come to an agreement where they would share the pet. If the determination is that it is an animal that is a part of a business or kept for agricultural purposes, it is property and the court can make an order but not an order to share custody, an order that it goes to one party or the other.

So there is significance in terms of that determination. Have I summarized the way the amendments are intended to function, or the results of the impact of the amendments?

Hon. N. Sharma: I guess the one thing I would add off the top is that even if it is an agricultural animal or a companion animal, of course, it’s up to the parties. Prior to that, they can come to an agreement on how to determine where, let’s say, that herder dog — to use the example the member provided — goes.

[3:30 p.m.]

Then I think the member described it correctly. If it was before a decision-maker as to whether it was a companion animal or not and if it is determined that it’s a companion animal, then of course it’s the decision-making power, laid out in the amendments, that the judge would use as guidance. If it’s not, it becomes property for agricultural purposes and divided like property, as in normal cases.

M. de Jong: When we get to, I think, clause 7 of the bill, we get into the considerations as to what a court will take into account with respect to a companion animal. By the way, I did not mean to ignore subsection (a) of the section, which also refers to guide dogs. I think there’s obviously a logical reason why a guide dog would be attached to, presumably, a specific member of the family.

I think the last question I have on this section, then, is if an animal is not a companion animal…. Let’s assume it’s not a guide dog but it is one of the other two types of animals contemplated and part of a business or kept for agricultural purposes. The Attorney has just mentioned that if the matter comes before an adjudicator, it’s dealt with as other property and different than a companion animal. In that case, what goes into the consideration or the determination by an adjudicator as to who gets that either business animal or agricultural animal?

Hon. N. Sharma: We start with once it becomes a family asset, so property that’s not excluded under family law, it’s presumed 50-50 division under section 95 of the Family Law Act. It sets out the factors that, in this case, a Supreme Court judge would determine the companion animals. Of course, we’ve allowed Provincial Court to hear those.

That includes things from the duration of the relationship between the spouses, any other agreement or the contribution to that potential asset. There’s a catch-all of any other factors the court might consider in terms of dividing that property.

M. de Jong: In the case, though, of an agricultural animal in circumstances where one of the parties at dissolution of the relationship is remaining on the agricultural property, presumably, that would be a relevant consideration.

[3:35 p.m.]

If one of the parties is remaining on the farm, so to speak, that the animal has been accustomed to living on, that would be a consideration for determining which party retains ownership of the agricultural animal.

Hon. N. Sharma: I guess, presumably, but it would depend on the facts in that case. For example, the other party might allege different attachment to the property, and it’s within the factors that are laid out in section 95, like I mentioned.

Also, you might have a scenario where there’s a division of the value of those agricultural lands and/or the assets that are included, like the animals. So even though the person staying on the agricultural land retains the property, stays there, the division of the value might go 50…. Fifty percent of that might go to the…. I guess I would just say it depends on the facts of the case.

M. de Jong: Yes, that undoubtedly is the case. I think, practically, this doesn’t arise when we are talking about the herd or the flock, which sort of by definition has a commercial component to it. It gets valued, and orders are made or agreements are made on that basis.

My particular interest, having introduced the concept of the companion animal, is when it is…. The better example, in many parts of British Columbia, is the two or three horses that maybe provide some agricultural function but also there may be a family attachment. Again, the determination of whether they’re property or a companion animal becomes very important.

I don’t know that we’re going to resolve this conclusively in this discussion except perhaps to go back to somewhere I think the Attorney went on the first day, which is to advise parties of the wisdom of trying to negotiate a settlement as opposed to relying upon an adjudicator whose ruling might not satisfy either.

I think, subject to any comments the Attorney has, that might be it on clause 2.

Clause 2 approved.

On clause 3.

M. de Jong: Sandwiched in between commentary and statutory provisions dealing with companion animals is this delightful clause that deals with some concepts that can be a little bit confusing for the average person and even for those who are supposed to be trained in the operation of the law. Clauses 3 and 4 talk about the presumption of advancement, the presumption of resulting trust and all in the context of excluded property.

Why don’t we start by…? In the briefing that we had, I alerted the Attorney’s office that the best way I can think of to have this conversation is that when I invite the Attorney, as I will in a moment, to describe for the committee what the old common law presumption of advancement is, the presumption of resulting trust, is to present it in the context of the kind of example that arises from time to time and, in fact, arises, I’m told, frequently enough that it has generated some confusing jurisprudence that has given rise to the need for these provisions.

Let’s see if we can come up with an example that allows us to talk about this in a way that makes some sense.

[3:40 p.m.]

Hon. N. Sharma: I just want to thank the member for allowing us to talk about these changes in detail.

I’ll start by saying that the team, when they went and consulted with experts in this area…. Really the conclusion was that this is one of the most controversial and most litigated aspects of property division in our courts. The goal of this section is to bring clarity to the law in two main ways. I’m going to start by just reading, for the interests of people, what the two presumptions mean and then give examples, as the member requested.

The presumption of advancement is a common-law principle. It stands for a proposition that if a husband transfers property to his wife during the relationship, the transfer is considered a gift, unless there’s sufficient contradictory evidence. So when a presumption of advancement is applied and a transfer is treated a gift, it changes the character of the property to family property. And on that basis, it becomes a family asset in division of the Family Law Act.

I’ll just give an example of how this would show up. For example, a spouse receives an inheritance from somebody in their family and puts it into a joint bank account — so without thinking about it, puts it into a joint bank account and doesn’t think that that becomes the property of the family instead of excluded property, as it’s an inheritance from their family. What the proposed changes in clause 3 would do is make sure that it’s very clearly still excluded property despite the scenario of putting it in a joint bank account.

Then just to talk a little bit about the other — that’s subsection (2) in the amendment — presumption of a resulting trust. It kind of stands for the opposite of presumption of advancement. The transfer creates a trust-like relationship, such as that the beneficial owner of the property remains with the transfer. It’s another common-law principle that’s in the law, and I think it’s good if I can give an example of that.

This would be an example where a spouse owns property prior to the relationship, gets married but, for what­ever reason during the relationship, adds the other spouse’s name to the title of the property.

[3:45 p.m.]

What this change will make clearer is that that property would stay excluded property, even though there’s a transfer of title. It also makes it clear that, despite that change, the court can decide, through the regular provisions of the Family Law Act, that there may be significant unfairness in not dividing that excluded property. So if there’s a reason for unfairness, it still could be divided. But it makes it clear that those presumptions don’t apply.

M. de Jong: Let’s start with the second example first. Let’s take the case of a couple that get married. Let’s say they’re in their mid-40s, only because I want to suggest an example where one of the spouses has had sufficient time to acquire some asset, a piece of property. They get married. We’ll use the example where the husband comes into the marriage with this pre-existing piece of property. Two years into the marriage he decides to place his now wife on title for that property.

In that case, the presumptions, I take it, operate for the purpose of division in a certain way that would see that property divided as a family asset. The presumption would operate for that to happen. This is designed to make it clear to a court that they must look at other factors. The two common-law presumptions no longer apply, so it doesn’t automatically follow that that piece of property becomes a family asset to the benefit of the wife, in that case, for division. Have I summarized that example correctly?

Hon. N. Sharma: Yes, to the member’s statement, except for one, I think, important clarification, which is that despite the presumptions having been removed from consideration, it would remain excluded property.

The act gives the decision-maker the ability to otherwise divide excluded property for fairness reasons.

M. de Jong: Right, and that is an important distinction. Let’s follow through on the example, and I’ll add a few details to it that I think occur, sometimes with a measure of regularity.

I’m going to use husband-wife for the purpose of my example. I’m also going to use an example that is a bit stereotypical of perhaps another age. These things, happily, may be changing. But here’s the example. A man and woman get married and become husband and wife. The husband has a pre-existing piece of property that becomes the matrimonial home and subsequently places the wife on title.

[3:50 p.m.]

These presumptions could operate in a certain way to ensure that remains excluded property at the time of division, except the Attorney has pointed out, and we don’t want to leave the impression that we’re passing something here where 25 years down the road, that woman is now out of luck, because there are other provisions of the Family Law Act.

In fact, other provisions, amendments to those provisions contained in this act, ensure in that case, even though the piece of property that became the matrimonial home was owned by the husband for some period of time prior to the marriage, the couple comes together. They live there for an extended period of time, maybe raise their kids there. The wife, by virtue of other provisions of the act that would be adjudicated if necessary, does not leave that relationship without any entitlement whatsoever to share in that excluded asset.

Having the Attorney confirm that and, perhaps, add some colour to my example would be, I think, important.

Hon. N. Sharma: Just for clarity, with the passing of this, there’d be no presumption that applies to any of the factors. But, as the member mentioned, yes, there’s the idea that if there’s significant unfairness, a judge could make an order to divide excluded property.

I’ll just give some examples based on what the member raised. For example, let’s say the marriage that was mentioned previously was ten years in duration, and the spouse — in this case, the wife, in your scenario — had made contributions to the maintenance and preservation of the house or significant contributions. That may be a factor that the judge considers in dividing the excluded property or making an order to that.

Another example would be if there is an agreement. Or, let’s say, in that long relationship, there really aren’t any other assets to divide, right? Then, in that circumstance, a judge may determine that for reasons of fairness, the excluded property needs to be subject to some form of division between the spouses.

M. de Jong: An important point that the Attorney has made. We might expand on it in the subsequent section. The determination around possible division is not based exclusively on contribution to the maintenance of this asset. It can take into account other factors, like the overall financial circumstances confronting the couple. Is that correct?

[3:55 p.m.]

Hon. N. Sharma: Yes. One thing to add is that in the scenario that you provided about a property that becomes a matrimonial property, for clarity’s sake, the increase in value of that property over the span of that relationship is subject to division as a family asset. It would be the value up to coming in. That’s one more factor.

M. de Jong: Is there a part of the ongoing evolution of the law around property division, the old trilogy cases and the courts developing the notion of the resulting trust to take into account? As I recall, historically, the injustice, generally, of the woman who came into the relationship, provided her, over many years, support for the family and contribution to the well-being of the family, only to discover, at age 70, that she wasn’t entitled to share any of the accumulated assets that might be available because the main asset, the property, was brought in by her partner.

The Attorney referred to the litigation and the confusion that has existed around this. It might be…. In commending these provisions to the committee and, ultimately, the House, it is, I think, important that we have some appreciation for the nature of that confusion. I shouldn’t call it judicial confusion. Different courts have interpreted provisions differently, which has made it very challenging to provide advice to people at times of dissolution.

What can the Attorney…? What would she say to the committee about how this provides a level of certainty that improves upon the uncertainty that presently exists?

Hon. N. Sharma: I’ll start by saying that in our extensive consultation, this was the number one issue that all the groups had said required clarity.

My team did a very careful and purposeful analysis of the case law when it comes to the division of this type of property and the application of presumptions. Based on an overview of that analysis, what they found was that there was a huge level of inconsistencies. Some courts were applying the presumption. Some weren’t. Some were avoiding the common-law principles entirely and looking at a factual analysis of the intention of the parties, which is a huge undertaking when it’s a long relationship. That would result in very long, lengthy decisions.

[4:00 p.m.]

With respect to, as the member quite rightly talked about, the purpose of these common-law presumptions and where they came from, it was also something…. We had support from Rise legal clinic, which deals with women, in particular, when it comes to family law and breakdowns, and the B.C. Society of Transition Houses. They also agreed that this type of law could use clarity, also, to protect women that are going through this process.

We’re really hopeful that with these amendments…. It will draw a line around what’s excluded property, what the reasons are for a division of that property and what’s family property.

Clause 3 approved.

On clause 4.

M. de Jong: I think clause 4 is somewhat of a…. It’s not just a restatement. It is intended to add something.

This notion…. If a property is excluded property and not a family asset, it doesn’t become a family asset because one spouse has transferred some kind of an interest to the spouse. That seems consistent with the discussion that we’ve just had.

Why is it necessary, in addition to the provisions of what will be the amended 81.1(1) and (2)? What does that add? Why is that provision, which is in clause 4, essential to complete the circle on this?

Hon. N. Sharma: This was in direct response to the case law analysis that my team did when it came to where this was showing up. Really, it’s a certainty clause. It’s to help make sure that there’s no doubt, when it comes to excluded property, that that category is part of it.

M. de Jong: The analysis, then, that a court would undertake is, firstly, to determine whether an asset was excluded property. Then if one of the parties alleged, “Yes, but a gift was made, a transfer was made, of a beneficial interest or a legal interest,” the court would say: “Well, that may be well and good, but that does not convert the excluded property, in and of itself, into a family asset.” Is that the intended effect of this?

Hon. N. Sharma: Yes.

M. de Jong: Then to follow that further, if the party alleging an interest in that excluded property…. They do what, at that point, as part of that litigation?

Hon. N. Sharma: Then it would be up to the party to make the arguments, if there are any, about why that property, with the character of it being excluded property, needs to be divided, for reasons of unfairness.

M. de Jong: They would do that taking into a account, amongst other things, the provisions that we are going to come to in clause 6 of this bill.

Hon. N. Sharma: That’s correct. They would take into account the clauses, which I think we’ll talk about, under clause 6.

[4:05 p.m.]

M. de Jong: The competing jurisprudence around this, at least in the time I had to do some legal research, seems not to have been decisively ruled upon by the Supreme Court of Canada, which doesn’t often — well, it does, actually, occasionally — get into property division matters in a family and matrimonial case. But the competing jurisprudence on this seems to have existed within B.C. within the context of our family asset and property division laws.

We’re not worried about, or are we, how this fits into the context of a recent Supreme Court of Canada pronouncement on these provisions.

Hon. N. Sharma: Just to start by saying that I think the member is correct. There hasn’t been a Supreme Court of Canada decision on this. This is definitely squarely a B.C. issue. Other provinces have adjusted their property division legislation to do similar things to these presumptions. This brings clarity to the law in B.C. when it comes to this.

Clause 4 approved.

On clause 5.

M. de Jong: We’re back to Fluffy and the family pet, the companion animal.

I was curious. I’m going to anticipate that the answer the Attorney is going to give us is the desire to make clear or restate. I was interested to see, with respect to agreements that parties can come to, that it was felt necessary to include these provisions, but I take it that is the case. There’s nothing now preventing parties from entering into an agreement to decide who gets the family pet. Is that correct?

Hon. N. Sharma: That’s correct.

M. de Jong: The rationale for being explicit…. I can think of all kinds of unique forms of property.

Has there been a bunch of litigation about this that has prompted the inclusion of these provisions?

Hon. N. Sharma: I’ll start by saying anecdotally…. Certainly, the experts we brought into this process have noted that there has been an increase in, I guess, pet custody disputes. What’s happening is taking up court time.

The goals of the overall clarity and amendments to this legislation are, first, to encourage out-of-court settlement when it comes to these matters so we can reduce the amount of court time spent on adjudicating these matters — hence the amendments to the section that you see before you — and then, also, to provide a process for people if they can’t come to that agreement at the Provincial Court.

[4:10 p.m.]

M. de Jong: Of course, the existing section 92 makes a provision for the parties to come to agreements around the division of properties and debt. This will add some subsections that relate specifically to a companion animal. Some of this is, I guess, fairly straightforward. If you’re sharing possession of a pet, I guess you’re alternating where the pet is going to live, assuming the parties are no longer living together. To jointly own a companion animal, is there something beyond the actual settlement agreement that confers ownership, or is that it?

Hon. N. Sharma: Thanks for the question. We can’t think of anything beyond agreement to the question that would indicate ownership. But I think it’s instructive to talk about the difference between (e) and (f) in practical terms. I think that the member is really good about bringing up practical examples for people.

Jointly own would be that they both maintain ownership of that pet. Fluffy, for example, is still owned by both parties. The agreement is based on that. Shared possession, on the other hand, would be a scenario where one party might be the owner but possession is shared so that the time with that animal is shared through that agreement.

M. de Jong: My colleague from Prince George has reminded me of where there might be a relevance beyond, just on the surface, the difference between joint ownership, shared possession and exclusive ownership.

The law is now going to contemplate something called a companion animal. It is going to contemplate the principle of ownership or joint ownership of that companion animal. Let’s say Fluffy is an unpredictable pit bull who decides to take a chomp out of someone walking by the house. Does joint ownership in this context imply joint liability for the behaviour of that companion animal?

[4:15 p.m.]

Hon. N. Sharma: I’ll start by saying that the changes to this or the additions to this section don’t change the law or things that were already happening when it comes to the agreements.

In answer to the member’s questions, potentially there’s a joint liability scenario, but it’s a matter of tort law and what could be ascertained from the facts of each case. For example, if it’s a shared possession scenario, but the ownership wasn’t somebody else, but the person that had the shared possession was walking the dog when the incident happened, there may be a form of liability on that person for failing to take certain acts to prevent the harm. So it’s really a fact…. That would be a fact-driven analysis, but yes, potentially.

M. de Jong: I think the Attorney has described accurately the considerations. But fair to say to someone who, as part of a settlement/separation agreement, enshrines the principle of joint ownership of a companion animal, they may be importing the notion of joint liability as well, depending on the circumstances.

Hon. N. Sharma: I would answer that by saying potentially and ask the person to seek legal advice before signing the agreement.

Clause 5 approved.

On clause 6.

M. de Jong: I’ll ask the general question first. This is intended, I think, to expand the range of considerations that a court can bring to determining a division of excluded property. How is this different? How will this be different from the state of the law and what the court can take into consideration today?

Hon. N. Sharma: We were having a discussion earlier about the reasons for the presumptions in the case law and that oftentimes they were used in scenarios where courts were trying to bring fairness to asset division in situations where there were not.

So the intention of both sides of it is to remove the presumptions and on this side of it, under this section, to enshrine and enhance the protections when it comes to unfairness. The subsections (ii) and (iii) that you see in these amendments are really getting exactly at that. The Supreme Court can make a determination respecting significant unfairness and address the division of that excluded property to address that.

[4:20 p.m.]

M. de Jong: In what will become the new section 96 in the act as amended, let’s deal with sub (a) and sub (b), which exist in the current provisions — division of excluded property. What has changed with respect to sub (a) and sub (b)?

I recognize that in the amendment, sub 96(b)(ii) and (iii) represent new additions. But substantively, the considerations that the court can take into account today in sub (a) and sub (b) — how, if at all, have they changed?

Hon. N. Sharma: From the perspective of just reading it, it looks like the whole section 96 has been repealed and replaced, but I can go through which ones have changed, as per the member’s question.

Section 96 (a) is the same. There would be no changes. Section (b) is the same except for the addition of factors. The two new subsections are subsection (ii) and subsection (iii).

M. de Jong: Let’s deal first with subsection (ii) in sub (b) and ask the Attorney to explain the challenge or the problem that has revealed itself that this seeks to correct.

[4:25 p.m.]

Hon. N. Sharma: Before I give the comment on the specific section, I want to situate it within its subclause.

At this point in the analysis, the court has turned their mind to the factor of “significantly unfair.” So there’s an unfairness aspect, and they also are asked to consider the duration of the relationship. In that scenario, subsection (ii) is meant to introduce a factual analysis of whether or not there was an agreement between the spouses that actually intended for that property to be divided.

So it stays as excluded property under this section, but it allows the judge to make an order to divide the property if there is evidence of an agreement between the parties that there be some kind of a shared ownership.

M. de Jong: Is the agreement, where the subsection says “the terms of any agreement between the spouses,” it says, “other than an agreement described in section 93 (1),” which I take it is a standard…. Well, it would be a property division or agreement or a separation agreement that includes other terms. So we’re talking about an agreement other than a property division or separation agreement. Is that correct?

Hon. N. Sharma: That’s correct. It’s not the formal, signed separation agreement, for example, like the member brought up. But it could be other forms of evidence of agreement.

M. de Jong: Right. Okay, but let’s be a little bit more specific. The court must then find another agreement. It will do so if there is evidence, but the court must find that there has been another form of agreement. The Attorney is saying that could be an oral agreement, or that could be a written agreement. Can the court imply an agreement from…? Can it be an implied agreement, or must there be an actual agreement?

Hon. N. Sharma: Again, it starts in this category of…. There’s a level of significant unfairness. That’s a factor to start with. Then I think the member is correct that it could be any form of agreement that the court feels satisfies that idea of agreement. If we were going to go back to the example we talked about earlier, the inheritance example, where it was transferred to a joint account….

[4:30 p.m.]

Let’s say there is significant unfairness in that relationship, so we’re already in the subcategory, and there’s evidence of emails back and forth saying: “I’m giving this to you. I want to share this.” There’s proof that there is this kind of agreement back and forth of that being meant to be a shared asset in the relationship, and it could take any form.

[S. Chandra Herbert in the chair.]

M. de Jong: Let’s take another example just to suss out a little bit what the Attorney believes constitutes an agreement for the purpose of the court’s consideration. A matrimonial couple…. We’ll stick with the husband and wife for the purpose of our conversation. But, of course, other couples are captured by these provisions as well.

One of the parties — let’s make it the wife this time — comes into the relationship having, sometime before the marriage takes place, obtained the family’s cabin at the lake. Over the course of the relationship…. Let’s call it…. Not sure what a moderately lengthy relationship today is. But let’s say between five and ten years.

On several occasions during gatherings there, the wife repeats something to the effect of: “This is our special spot, and it will always belong to the two of us.”

Is that an agreement?

Hon. N. Sharma: I’m really reluctant to give an answer either way on that scenario. I will say that it’s up to a competent…. We have many competent decision-makers in B.C. that would look at the factual basis of all of the scenario involved and the couple described and would make a determination based on that.

M. de Jong: Maybe the fairer question is: could that be an agreement? If it could be, then it is intended to have a new-found relevance by virtue of…. If it is found to be an agreement, it has a new-found relevance, pursuant to the provisions of sub (2).

Hon. N. Sharma: So the exact words of the terms of any agreement between…. That section there is taken from section 95. Based on that idea, there would be a rich amount of case law when it comes to the different factors that would set out what constitutes an agreement.

I would say, based on that scenario, somebody should do legal research to see what are examples of how agreements are showing up and if that would constitute a good case for an agreement based on that.

M. de Jong: But fair to say that all of that jurisprudence and how that assists in determining whether or not an agreement exists takes on a new relevance as it relates to determinations around excluded property because of this amendment. Is that a fair comment?

Hon. N. Sharma: I think that’s a fair comment.

[4:35 p.m.]

M. de Jong: Then finally on this section, down to sub (3) where we have an example of where a court has determined that there is significant unfairness and has made that determination. An example of how the court can now use this provision to cure that unfairness.

Hon. N. Sharma: This will help to provide clarity and relief in very particular situations and pretty broad situations. For example, if there are not enough family assets to divide, so it becomes unfair to one or both of the parties, a court could make an order to divide part or all of the excluded property amongst the spouses.

This is a new addition to the law here that’s profound, in terms of its addition to the whole ability for the court to make things fairer. We believe, I think, that one of the reasons presumptions were coming up in case law was because of the need for tools to do this within the family law, especially in the instance where there were no family assets.

M. de Jong: Maybe the easiest way for the Attorney to illustrate the inequity that this provision is intended to cure is for her to describe for the committee one of those situations where an inequity resulted and how this provision is intended to prevent that from being repeated.

The Chair: Member.

Hon. N. Sharma: For example, in a scenario where one spouse….

The Chair: Minister, sorry.

Hon. N. Sharma: That’s okay. I didn’t even catch what you said.

So in an example where one spouse owned a property, brought it into the relationship…. They weren’t a spouse yet. They got married. Let’s say they were together for ten years, a significant amount of time. All of the, let’s say, assets and the property were excluded, because they were held by one of the spouses before the marriage.

The other spouse that doesn’t hold that excluded property contributed significantly to the career of the other spouse, but at the end of their relationship, there was not what a court would deem sufficient amount in the family assets to divide in order to remedy the unfairness of that — I guess, the balance between the value of the excluded property and the family assets.

[4:40 p.m.]

What this provision would allow a decision-maker to do is to take a look at those scenarios, and section 95 lays them out, and make an order to remedy that unfairness by dividing some of the excluded property up.

M. de Jong: Our examples thus far have tended to focus on mostly real property. But are these provisions…? Will they operate in a way that could include a judicial reference to, for example, a pre-existing business interest?

Hon. N. Sharma: Yes. I think, although we have been talking just about real estate, it is a broad intention. So anything that would fit a category of excluded property.

M. de Jong: In that kind of a scenario, the court, if asked to adjudicate this, would look at the family assets, look at the overall circumstances of the relationship and its dissolution, at first make the determination that simply dividing up what is available as the family assets would result in unfairness to one of the parties and would then be entitled to examine these other excluded assets, including a business interest or other type of asset.

Maybe it’s the last line I’m having trouble with, just properly understanding in the subsection: “…to which the significant unfairness cannot be addressed by an unequal division of family property or family debt, or both.” Having now read it again…. This is where the court seeks to address the issue of fairness by saying, “I am going to divide the family assets 25-75,” or something other than 50-50. But even that is insufficient to address what the court has determined to be an unfairness or to close that unfairness gap. Is that how that is intended to be read?

Hon. N. Sharma: Yes.

M. de Jong: I wonder if it might be a good moment to take a short break.

The Chair: I like the suggestion, Member. We will take a five-to-ten-minute recess. The sooner we’re back, the sooner we get to work.

The committee recessed from 4:43 p.m. to 4:52 p.m.

[S. Chandra Herbert in the chair.]

The Chair: I’d like to call this committee back into session. We are looking at Bill 17, the Family Law Amendment Act, 2023. When we finished, we were on clause 6.

Clause 6 approved.

On clause 7.

M. de Jong: Probably the last provision that I will need to…. I thought it was the last provision that was relevant directly to pets and companion animals.

There is, in clause 7 — which will amend section 97 and which incorporates the notion of the “companion animal,” in what will become (4.1) — a list of things that the court can take into account. There is a catch-all at the end of that, sub (h), that refers to “any other circumstances the court considers relevant.”

Someone who read this — I’m not sure how many people have — a pet lover, said to me: “Well, what about the pet?” It’s a pretty exhaustive list, but why didn’t the drafters include some reference? Why didn’t the drafters include some reference, or direct the judge, to take into account where she or he thought the pet might be happiest?

I take it that it’s a purposeful decision not to incorporate some notion of the best interests of the pet, though I’m sure the Attorney will say a judge under subsection (h) could probably, if the circumstances permitted, say: “On balance, I think the pet would be happier here as opposed to there.”

[4:55 p.m.]

Hon. N. Sharma: Thanks for the question. I’ll start by saying that embedded in each of these factors, I would argue, is a consideration of the best…. For example, (b) is “the extent to which each spouse cared for the companion animal.” So there’s a level of relationship there. The history of family violence or the risk of family violence or a spouse’s cruelty towards the animal is about, I would argue, that as well. The relationship of the children to the pet and meeting the basic needs of the companion animal….

Then, rightly so, I think the member mentioned that the final subsection allows the court to take other interests into account.

M. de Jong: My last point on this is…. Again, in a case where, probably in a more rural setting….

A relationship has come to an end, and the parties are going their separate ways. One of the parties has decided to move into a more urban setting, and one of the parties is going to remain on what was the family farm. There’s probably, all things being equal, a fairly compelling case that suggests the companion animal, which is used to wandering the vast and rolling acreages of the family farm, the dissolution of the relationship notwithstanding, is probably going to enjoy a continued existence in that setting.

There is nothing in these provisions that I read that suggests a court couldn’t at least factor that into a determination. Is that correct?

Hon. N. Sharma: I would say that (h) would be, obviously, a factor that would be more fact-driven.

For example, if that was a major fact in a scenario that was raised by the member, I would imagine the court would consider that. I would also argue that subsection (g) provides the court to weigh that a little bit, in terms of “the basic needs of the companion animal.”

M. de Jong: For an average person reading the section…. I’m not sure how many will. Happily, many won’t need to ever in their lives. If they do and they read what will become (4.2), they will be struck by the fact that there is an explicit prohibition here on a court declaring joint ownership or shared possession of a companion animal.

I know, because of the briefing we had, that there is a rationale for that, but it’s probably an important enough point for the Attorney to put on the record for the committee.

[5:00 p.m.]

Hon. N. Sharma: Thanks for asking the question. There are a few reasons why the section is written like it is. The first reason would be that we’re trying to drive agreement between the spouses when it comes to that companion animal. Under the law, companion animals are still considered property, so the court’s ability on that is to make a final determination when it comes to division of property, unlike custody or other matters that can vary over time.

I think there’s also a significant need to not only drive agreement on one side but also manage court resources and time and expectations when it comes to what sometimes tends to happen particularly in acrimonious disputes where if it’s joint and not agreed to, it could be continually showing up in a courtroom for court determination.

So the idea is that for all those reasons, we try to drive towards agreement between the parties when it comes to shared and joint custody, but if you’re going before the provincial court, it’s an order, as you see, between the parties.

M. de Jong: I don’t quarrel with the Attorney’s description of the law as it relates to property and orders as they relate to property. I guess it bears saying that because the Attorney and the government and this House ultimately draft the laws, it was an option to create an exception to that general rule and say that in the case of companion pets, the court has an option of awarding joint ownership or shared possession. I’m not disputing the Attorney’s description of the state of the law as it relates to property, but that option existed.

Is the Attorney satisfied that to enable the court to have that option would ultimately be a negative thing — that is, authorizing the court in circumstances where it deemed it appropriate and workable to award joint ownership of a pet or joint custody of a pet companion animal? Is that ultimately inadvisable?

Hon. N. Sharma: Yes. So it starts with…. I already mentioned the various reasons before, but maybe it will be instructive to give an example. For example, if we’re at a stage where the couple have not been able to come to agreement themselves, the likelihood of that being acrimonious or something else being a factor for the relationship is higher.

For example, Rise legal clinic gave examples of women that are fleeing violence where, maybe, the sole kind of tie is a companion animal in that relationship. In that scenario, if there was an order for joint custody, there’s an opportunity for the power and control dynamic of that relationship in that to show up in courtrooms and for the controlling party to use that in negative ways.

[5:05 p.m.]

So we start by the idea — this shows up, I think, in courts — that if you’re not able to come to agreement, generally it’s because of a certain level of acrimony or an inability to work together, and the dynamics that may be around in that situation.

Then we think about how that might show up over time over conflict about who pays for pet bills — all the various things that could come up with joint custody if they’re not able to come to agreement themselves. So yes, I think this is the way forward when it comes to these types of orders.

M. de Jong: Hon. Chair, I won’t quarrel with the Attorney in her analysis of the example as given, where there is that threat of violence or where there has been that evidence of violence in the relationship and that level of acrimony that reveals itself violently. You certainly wouldn’t want to have that lingering connection.

I can also think of different examples. I guess I might as well say what the person that I was talking to over the weekend said. And I understand that the law, to this point, operates differently.

For many couples, first of all, in the case of a child, there is an underlying recognition of a connection between the two parties that needs to be addressed. It’s not always addressed with joint custody. In some cases, there is no access whatsoever, but the court certainly has that option and, if anything, tries to exercise that option on behalf of two parents, notwithstanding the dissolution of the relationship.

The person said to me on the weekend: “You know, for more and more of us, the pet is our child. We don’t have children. This is ours.” Now, companion animals, most of them, have a shorter lifespan. So some of this eventually is resolved through the mortality of the pet. That person would say, “Even though we might quarrel about who is getting the boat and we might quarrel about the division, there is a fundamental connection that we both have to this dog” or cat or whatever other companion animals it might be.

“Even though we couldn’t come to a comprehensive agreement on all of these other matters and even though we had to resort to the court to get resolution on all of these other things, it seems unfair that the court couldn’t recognize that connection” and enshrine that connection in a court order that recognized joint ownership or joint possession on certain terms. That is the argument that certain pet owners might make.

I hasten to add, as the Attorney General has said, that everyone has the option of trying to negotiate an agreement, but in the example I have given, perhaps the Attorney General could make her views clear as to why in no circumstances should the court have the option of ordering joint ownership or joint possession.

[5:10 p.m.]

Hon. N. Sharma: I’ll start by saying that we’re the first jurisdiction in Canada to recognize the difference between a companion animal as it comes to property and other property. We already start in a situation of giving better guidance to families, on breakdown, when it comes to legal options with respect to seeking either a court order or an agreement.

I’ve already mentioned the various reasons why we landed where we did. Shared custody is not an order that you can obtain from the Provincial Court, but you can legally recognize your agreement that you’ve made in terms of possession and how you divide that up.

I don’t think I have anything further to add on that point.

M. de Jong: I think the last point on this. The order of the court is a final order. It’s a final order. For the reasons…. Pursuant to the provisions we’ve been discussing, it is a final order that vests ownership in one party or the other and that is not subject to being revisited, except, I suppose, on appeal. I suppose a party could appeal that part of an order. But unlike a custody order, it’s not something a party can come back to the court and seek to revisit and seek to have amended. Is that all correct?

Hon. N. Sharma: That’s correct. They can appeal it. That’s an option available to them. But it’s a final order.

Clause 7 approved.

On clause 8.

M. de Jong: I took a few moments on clause 7 for two reasons. I had promised a couple of the folks that I had discussed those provisions with that I would pose those questions. It was also a convenient way to avoid dealing with clause 8 and the delightful topic of pension divisions and all of the incomprehensible terminology that that employs. Well, we best get to it.

For the purpose of having this conversation…. I’m afraid I’m going to have to ask the Attorney General to describe for the committee what a LIF, or life income fund, is and when it arises — generally, I take it, in the context of a pension where someone takes the commuted value of that pension. But we’re probably going to have to ascertain for the committee what kind of a pension asset we’re actually talking about here.

Hon. N. Sharma: Thanks for the question, Member, and thanks for giving us a heads-up on your questions here. I have a whole bunch of information now when it comes to examples.

[5:15 p.m.]

We’ll start with LIRAs. LIRAs are a special type of RRSP. They’re obtained to pay an income stream to an owner beginning at a future date, usually when the owner is at least 55. In that way, LIRAs contain locked-in money and are most commonly created when an employee who is part of an employer pension plan leaves their employment after their pension vests and transfers their entitlement to a LIRA. Similarly, a LIF is locked-in money to be paid out in retirement.

Although it’s not impossible to remove money from a LIRA…. You must meet certain strict criteria before you’re allowed to take out money. These criteria are often related to needing the money to pay daily expenses.

Therefore, LIRAs and LIFs have much in common with pensions. They usually contain a spouse’s employment pension benefits that were accumulated as a result of their employment and their contributed years before benefits are received. They exist to provide an income stream and to provide for post-employment life. They are administered by others, usually a financial institution. The money cannot be easily withdrawn. Hence the changes that we made — they look a lot like pensions, and they act like pensions — to include them as that.

M. de Jong: All right. Well, let’s start to break this down just a little bit. The amounts involved here can be significant and, in some cases, can represent the largest single asset in a dissolving relationship.

LIFs and LIRAs. I thought liras were an ancient form of Italian currency, but it turns out they have much greater significance here as a function of the pension laws.

Here’s what I understand and why this is an important part of the pension division provisions that we are dealing with. If I have a pension and I do nothing, I am…. Under the terms of the plan, whether it’s at age 55, 60 or 65, I can start to collect my pension.

In the family context, where the family has remained whole and together, those are happy days. Both parties to the relationship enjoy the benefits, presumably, of beginning to collect those monthly pension payments.

If the relationship breaks down prior to that or even at the time I’m receiving those pension benefits, there’s…. Part 6 pension division provisions set out a formula by which those payments are divided between me and my spouse.

Here we’re talking about something different. The relationship is broken down. I’m not collecting monthly pension payments yet, but I decide to take the commuted value of my pension, which could be hundreds of thousands of dollars. When I do that, a portion of those proceeds go into a LIRA, and a portion of them go into the LIF. I think I’ve got it right so far.

Where the problem has arisen is in how the courts divide that asset, which has kind of been converted from a monthly entitlement at retirement to a lump sum that I may not have absolute access to but that now exists, for me, in one of these two types of accounts. That is the amount that we are now seeking to create some rules around division.

My original question, when I met with the staff for the briefing, was: are the existing part 6 provisions not sufficient to address this? I won’t put words in their mouth, but I alerted them that I would ask the question of the Attorney. Presumably not. And why not? Why do we need provisions that deal specifically with LIFs and LIRAs?

Hon. N. Sharma: Okay. Current case law indicates that part 6 of the pension division does not apply to a LIRA or a LIF and that they would be divided under part 5 property division. What these amendments will do will bring clarity directly to that point by including them in pensions.

[5:20 p.m.]

M. de Jong: That is a problem because…?

Hon. N. Sharma: I think the problem this is meant to fix is best illustrated through an example. We’ll consider that a spouse had been contributing to a pension for about 15 years prior to a relationship. So normally speaking, that would be a money that was accumulated before the relationship.

The person marries. They’re in that relationship. The pension in that relationship, let’s say, after one year is converted from the employer’s pension plan into a LIRA, through whatever reason they had to do that. Then that LIRA is now under part 5 of property division and subject to the 50-50 presumption, even if you’re thinking that most of the pension was accumulated for the 15 years before that relationship.

Let’s say the relationship only lasts one year, then it would still be the case that that was put into a LIRA during the relationship. What we know about LIRAs is because…. As I described before, they act and are a lot like pensions.

Once this amendment goes into place, the LIRA in that scenario I articulated would now be under part 6. So that entitlement of the spouse upon separation — the spouse that didn’t hold it would be entitled to the year…. There would be a limit to the years that they were together. There would be that factor that could take into account pension division, which is set out in part 6.

M. de Jong: In the example that the Attorney has given, 15 years — we’ll call it a pre-marriage contribution to the pension plan — followed by five years together and then dissolution and then the conversion of the pension.

If nothing were to happen and the pension assets were divided on the basis of the existing part 6 provisions, the spouse who came into the relationship would be entitled to 25 percent. So 20 years total contribution to the pension, 15 of which happened pre-relationship, five that happened during the relationship. In general terms, the spouse would be entitled to 25 percent.

The challenge the Attorney has pointed out is that because of this gap in the law, if the contributing spouse converted the pension to a LIF or a LIRA, the departed spouse who would otherwise have only been entitled to 25 percent, now could be entitled to 50 percent.

[5:25 p.m.]

Hon. N. Sharma: Yeah, that’s correct. There’s a formula that takes into account the division of pensions, and one of the factors in that formula is duration of the relationship, so as you’ve articulated it, the reason for the changes is correct.

M. de Jong: Is there cross-pollination between part 5 and part 6, to the extent that a court can look to either the pension, or, now, the provisions dealing with LIFs and LIRAs, to address the unfairness argument that we discussed earlier?

Hon. N. Sharma: No. The pensions are divided exclusively under part 6. It wouldn’t apply to the provisions that we talked about earlier, about unfairness.

M. de Jong: Again, using the example that the Attorney has offered up. If, in that scenario, that was the only meaningful asset, and there were fairness arguments about the division of family assets, it would not be available, even with these amendments, for the court to look at the LIF or LIRA to address what it perceived to be an inequity or an unfairness in the division of family assets.

Hon. N. Sharma: The Family Law Act as it is, and with these amendments, has different tools with the scenario described that is not just about the unfairness provisions we talked about. One example is income stream.

The RRSP, once it’s an income stream, could be subject to a spousal support order for payments. Another example is…. Let’s say that the LIRA makes up 50 percent of the assets, but it’s excluded. Sorry. It’s in the pension division section. But the family assets is the other 50 percent.

A court could make an unequal division of family assets order to offset that somehow, if they think that there’s a reason to do so, based on the totality of the case and the assets before both couples.

M. de Jong: The Attorney partly answered my question, and the tail end of her answer kind of answered the reverse of the scenario that I was describing.

[J. Tegart in the chair.]

That is, she described a situation in which the court perceived there to be an inequity or was troubled by the pension-related part 6 division and then sought to use the provisions of part 5 to rectify what it saw as unfairness or inequity.

[5:30 p.m.]

My example was slightly different, and that is the reverse. In a circumstance where — and we can imagine all the scenarios that lead to this — there are no family assets and there are no excluded assets that would allow the court to address an unfairness, can the court reach into part 6 and reach into these new provisions around LIFs and LIRAs, which are sums of money in accounts, and seek to alter the distribution accordingly?

Hon. N. Sharma: Just to bring some clarity to the beginning definition of LIRA, we can imagine that a LIRA is not, as we talked about, a regular asset, in the sense where you don’t start receiving the income or the payments until after a certain age. Even in the scenario of it being…. The answer to the member’s question is that he’s correct. Once a LIRA switches to pensions, it’s not available for the unfairness scenario or if there’s a lack of family assets.

But you have to also imagine the financial instrument is one that isn’t available till a certain age also. It’s locked up like a pension. One of the things that we’re fixing with this legislation is putting it in its correct category, which is that it’s a pension. It’s not available for the parties till a certain age. It should be treated like a pension, categorized in that and paid out as such. Once the income starts paying out, there may be a claim for spousal support, whatever age that is.

M. de Jong: I’m not going to quarrel. I’m not quarreling with the decision to bring clarity to the statutory provisions that should apply to division and the proper categorization of these instruments within the pension provisions of the act. I think there is a sound argument to be made around that.

[5:35 p.m.]

I did want to ask…. In investigating this further, I am told that the law in British Columbia around accessing LIRAs and LIFs — and one, in particular, of the two — are far more restrictive in this province than is the case in other provinces.

To what extent is the Attorney able to share with the committee the nature of those restrictions? To what extent, then, is that of concern in a situation where one of these accounts comes into being or exists at dissolution?

The amounts here can be quite significant in the hundreds and hundreds and hundreds of thousands of dollars. In my experience, practising in this area of the law, most couples go through a period of financial difficulty when the same amount of income that used to support one household now has to support two, and here’s this amount sitting there that is now subject to division under a clear set of rules but is inaccessible.

Is the Attorney able to tell the committee about the nature of the restrictions that apparently distinguish British Columbia from other provincial jurisdictions in Can­ada about accessing these amounts of money?

Hon. N. Sharma: Our analysis of LIRAs, for the purposes of amendments for the Family Law Act, was strictly related to its relation to pensions and how it was showing up with the case law. I do not have an analysis in order to be undertaken, an analysis of the differences between LIRA products, between B.C. and how they’re regulated in the rest of the provinces, so I wouldn’t be able to answer that particular question. I can say that we know the LIRAs in B.C. are restrictive in terms of the sense that I’m informed you have to show you’re unable to have an income in order to start drawing from it. But I don’t have an analysis as cross-jurisdictional.

M. de Jong: Right. A couple of clauses down the road here, we get to provisions that actually operationalize the means of dividing up. When we get there, I’ll ask about…. I’m presuming the court is vested with the authority to enter the LIF or LIRA for the purpose of effecting the division and having funds transferred from one party to another. So it’s accessible for that reason.

[5:40 p.m.]

When we get there, I’ll pose questions about whether the Attorney is satisfied in terms of the overall health of the parties at a breakdown, whether it is necessary to go further and make sure one or both of the parties actually have access to those funds. But we’ll get there in a moment in terms of those additional questions.

I think that’s probably it on clause 8.

Clauses 8 and 9 approved.

On clause 10.

M. de Jong: The existing provisions of part 6 contemplate a limited member. I’m not sure if it’s a defined term under the act or not. It probably is. But my question with respect to clause 10 in this bill is to verify or not what the objective is. Is this to ensure that with respect to these instruments, the LIFs and LIRAs, as part of that division exercise, the non-owner spouse can be designated a limited member for the purpose of getting reports and having access to information about the account and about…? Is that the rationale?

What does their establishment as a limited member do to protect their interest vis-à-vis that sum?

Hon. N. Sharma: The specific purpose of this amendment is for the very specific scenario where if there is a personal representative of the spouse and the spouse is deceased, to make sure that that personal representative can get the notice that there’s an entitlement for that estate from the member. So the member is the member of the actual plan.

M. de Jong: Is it the inclusion of (2)(c) and the reference to the personal representative that is the additive provision to this section?

[5:45 p.m.]

Hon. N. Sharma: Yes.

M. de Jong: Thank you to the Attorney.

The next few questions…. Some of them, on clause 10, clause 11…. I’ll just ask them, and I promise not to ask them again if I’ve got the wrong section here. What I’m going to try and ascertain now…. When we read clause 10 and when we read clause 11….

We’ve got two parties who were in a relationship. The relationship has dissolved. We’ve got, with respect to a pension, an owner spouse. Then we have the other person — who could be the spouse or, then, a limited member spouse, but the other party — who has certain entitlements to that pension. We’ve now incorporated or are in the process of incorporating into the legislation a means by which their entitlement to a LIF or LIRA can be calculated.

What I’m trying to get at now, with the Attorney’s assistance…. In a case where the owner spouse decides they do not wish to take the commuted value of the pension…. They wish to leave it where it is and, at age 60 or 65 or whatever the plan provides for, begin collecting and have the monthly pension draw divided as per those provisions of part 6.

Does the spouse have an ability to take a different approach and exercise their right to seek their share of the commuted value? Have I explained that in an understandable way?

One spouse doesn’t want to touch the pension. The other spouse says: “I want to cash out now.” Does this facilitate that?

Hon. N. Sharma: It is not something that we’re changing through these amendments. But the general….

Part 6 would deal with that scenario. In that scenario, like you suggested, the member doesn’t want to touch it; the other one wants their commuted value. Part 6 would allow for both to happen.

For example, the person that wants to hold it till they’re 65…. The other one, who is entitled, could say to the pension administrator: “I want my commuted value at this time.” That is laid out in part 6 already.

Clause 10 approved.

On clause 11.

M. de Jong: That’s helpful. I take from that…. That scenario can play out now, and the act can accommodate it.

What does clause 11 add? Where it says…. It speaks to having “the limited member’s proportionate share of the commuted value transferred from the plan to the credit of the limited member.” Why was clause 11 necessary if the existing provisions of part 6 allow for this to occur?

[5:50 p.m.]

Hon. N. Sharma: The reason for this amendment is to add a level of fairness. We noticed, in amending the legislation, as we do reviews of legislation regularly, that there was a sense of unfairness where, for the pension, the spouse that’s asking for a share of the benefits may have rights that the member doesn’t have themselves.

For example, if, under that pension plan, the member can’t themselves withdraw a certain value at a certain time, then it was unfair for the spouse to be able to get that through this ability. It clarifies that insofar as the scenario we just described — about commuting and not — is available, it’s only to the extent that the member’s rights under the pension exist. Does that make sense?

M. de Jong: It does. The spouse, at dissolution, doesn’t acquire rights vis-à-vis the pension that the pension member, the owner spouse, doesn’t have.

What about the timing for election? Again, in our scenario, the spouses are parting company, and this conversation is taking place. The LIF and LIRA, presumably, in that scenario, already exist. At what point are there restrictions on when the spouse — that is, the non-owner spouse — can make an election to access their share of the commuted value via the LIF or LIRA?

If that’s not done at the time either of a settlement agreement or a court order, does it follow then, automatically, that the pension plays out through to monthly payouts? The owner spouse continues to have rights and could, presumably, at any time, seek the commuted value of the pension. Similarly, does the non-owner spouse have the right, on an ongoing basis, to access their share of the commuted value? This gets, I’m told, very tricky, because that value changes wildly depending on interest rates, bond yields and all that sort of thing.

Hon. N. Sharma: We start answering this, I think, by the confines of whatever the pension instrument is, right? We talked about that a little bit before. Then, under that, the idea of the legislation is, in the scenario as described by the member, that each spouse has their decision point of when they want to, I guess, access their rights under that pension. There may be notice requirements, but they can elect to do it, and they keep their right to do that for the term of the pension.

[5:55 p.m.]

M. de Jong: Yes, all of that is certainly true, and I don’t quarrel with the Attorney. It just strikes me that from the time of dissolution, if this is intended to operate in a way where the parties — either by a court, a judicial decision or via an agreement they negotiate themselves — decide, as of such-and-such a date: “We are going to take the commuted value and divide it as per these provisions” or “I am going to take my commuted value. You are not….”

If the plan, as many of them do, allows for the decision around the taking of commuted value to be exercised right up until close to retirement, the implications for the other party who has an interest in the plan can be pretty profound. Taking a share of the commuted value is going to have a significant impact on the monthly payouts at time of retirement.

I’m not quarrelling with the rationale behind preserving choice. But is this intended to work in a way that…? I’m going to ask it differently. It seems like both parties maintain their rights to exercise the options available to them in the plan for the duration of the plan. Exercising those options could…. One party could be expecting that at age 60, they are going to receive a pension of approximately $3,000 a month. But if the other party decides at age 55 to take their share of the commuted value, that is going to profoundly impact the amount that is paid out in the pension.

Does the regime allow for and contemplate the exercising of those options on an ongoing basis? Or is there a moment when that decision needs to be made either by a court or by the parties themselves in an agreement?

[6:00 p.m.]

Hon. N. Sharma: I’m learning a lot about pensions here, which is great. I guess I’ll start by saying that when we’re talking about pensions, the assumption that the member had — about it affecting the other party if there’s a commuted value — is not necessarily the case.

If you imagine this category dealing with employer-based pensions, the risk is divided over the investments that are of many people, right? Your entitlement to your pension, based on the vested time and the risk divided by so many people in these massive funds, doesn’t necessarily mean that it’s diminished by another person, the spouse being entitled to a commuted value, having withdrawn.

There may be an impact, but I don’t think it’s necessarily a massive amount of difference to your entitlement because of the risk being divided by so many people and the way that pensions are vested and accrued over time.

Then, I guess, if you think of it that way, the disparity is not necessarily going to show up for people when they start withdrawing their pension.

M. de Jong: When I say what I’m going to say, it’s not because I think the Attorney is purposely trying to mislead or anything, but I think I disagree. If you have a pension and take the commuted value, you are dramatically im­pacting…. Well, if you take the full commuted value, you’re not getting any monthly payments. You’re taking those proceeds in advance.

If you or your spouse takes a portion of the commuted value, I have to believe that there is a significant impact on what the monthly amount will be — which leads me, maybe, to a question I should ask that I think the Attorney tried to answer and that I may not have properly understood.

The idea is that, in a regular circumstance, if I have a pension and I take the commuted value, I take the entire commuted value and I no longer have a monthly pension. I’ve taken the money.

I think the Attorney says the existing act already contemplates the situation where, in a spousal separation situation, one of the spouses can take a portion of the commuted value, and the other spouse can remain in the pension plan. I should verify that that is the case, but I will say that has to have an impact on the end result, by one of the parties taking funds out of the spouse’s account with the pension plan.

[6:05 p.m.]

Hon. N. Sharma: Okay, I think I have identified the source of “potentially,” and I’ll get the member to clarify the confusion that’s happening in the question.

Section 115 only applies to pensions — not LIRAs, LIFs or divisions amongst two people, as I think the member is asking about. The amendments that we’re making are more nuanced in terms of part 6 and how they apply. The provisions that we were referring to, I think, in the last two, and certainly this one, this section, pensions…. “Pensions” is defined in the act to mean the broader, bigger employee-contributing pensions that I was referring to, to fit those kinds of things, not division as amongst two people, like LIRAs, LIFs and RSPs.

Hopefully that brings clarity to the different perspectives that we have on it. So LIRAs and LIFs would apply…. I have a list here of where the amendments would apply, but it’s not to section 115. It’s to specific sections under part 6.

M. de Jong: To make sure I understand, in circumstances where the owner spouse has not yet taken the commuted value and not yet established a LIF and/or a LIRA, and I think they have to do both, is the non-owner spouse, either on their own behalf or on behalf of themselves and the owner spouse, able to provoke that happening because of these provisions?

Hon. N. Sharma: The specific amendment under section 115 is very similar to the amendment we talked about previously. That, hopefully, answers the member’s question. It doesn’t give any rights to a non-owner spouse that the members themselves don’t have.

If there is the right to have a commuted value under the benefits plan of the member transferred, then there’s an entitlement of the non-owner spouse to do that as well. It’s kind of the same amendment that we were talking about earlier.

M. de Jong: Clause 12, I think, is very clear. It speaks to the non-owner spouse, or the spouse of an owner spouse, and their entitlements. It kind of, I think, sets out the formula for division where there is already a LIF or LIRA, if I have that correct.

The LIF and LIRA already exist, and this creates the formula by which it is to be divided. The previous clause, that we’re technically still on, though, is the one that says: where what we have is a pension plan, there is no LIF or LIRA yet, because no one has opted to take the commuted value. This suggests to me that if the owner spouse has the right to take the commuted value, then the non-owner spouse has the right to do it.

[6:10 p.m.]

I understand that. What I’m still unclear on is whether the non-owner…. Can we end up with a hybrid situation? Can the non-owner spouse take their share of the commuted value without the owner’s spouse having to take their share of the commuted value?

Hon. N. Sharma: Yes.

M. de Jong: Well, let’s go to clause 12 then.

Clause 11 approved.

On clause 12.

M. de Jong: With respect to what will be 117.1, in general terms, was I correct? Is this the formula for division? In the case of sub (1) and (2), I think most of the provisions…. This formula, which I’ll ask the Attorney to summarize, in terms of what that formula is….

My sense is, as we discussed at the beginning of this exciting chapter in legislative history, it is similar to what the non-owner spouse would have gotten if the pension had started to pay out its monthly payments. It is intended to replicate that, with respect to the LIF or LIRA. So that’s the first question.

Then the second question is to confirm, again, that that formula applies when there is a LIF or LIRA account that can be subject to that division.

Hon. N. Sharma: Yes, to both the questions of the member. For the first one, just to elaborate a little more, the idea is that if the money is removed from a pension plan and put in a LIRA or a LIF, the similar formula that was used to calculate, had it stayed in the pension for the duration, be used to apply to the division of the LIF or LIRA.

M. de Jong: We’re still in clause 12. If we go to sub (7) and sub (8), which, again, refer to the entitlement of an owner spouse and an election they have with respect to the division of a LIRA benefit or a LIF benefit…. As I read through that and tried to understand the relationship between sub (7) and sub (8)….

Sub (7) speaks to an entitlement on the part of the owner spouse. Sub (8) talks about the plan text document. Are those two mechanisms by which the owner spouse can trigger the division? I wasn’t sure of the distinction between sub (7) and sub (8).

[6:15 p.m.]

Hon. N. Sharma: The key difference between subsections (7) and (8) is the election. You see under (7) that the first sentence says: “The spouse of an owner spouse is entitled to elect one of the following….” So in a situation where there is an entitlement to elect, that section applies. In subsection (8), it’s a situation where there is no entitlement to elect, and then those provisions apply.

Clause 12 and 13 approved.

On clause 14.

M. de Jong: We’re now beyond the exciting realm of LIFs and LIRAs into old-fashioned annuities, which are often tied to pensions. Interestingly, here the choice has been made…. In a case where a spouse who purchased the annuity is not receiving payments from the annuity, the division takes place pursuant to part 5. Where they are receiving payments, it takes place according to part 6.

Now, we just had an extensive conversation about why it was, in the case of the LIFs and LIRAs, appropriate to roll it all into part 6 because of the ultimate relationship to the pension. I take it…. Well, I’ll just ask the Attorney. In this instance, with respect to annuities, a different approach…. There seems to be recognition that in some cases an annuity would be dealt with under the provisions of part 5 as opposed to part 6.

I think it’s worth hearing from the Attorney as to why that distinction is appropriate.

[6:20 p.m.]

Hon. N. Sharma: The member is correct. The reason this is treated differently is because it’s a different financial instrument and shows up differently in its usage. There are a few scenarios that helped us decide which category it should be in, so I’ll give an example.

If a pension plan administrator has purchased an annuity, then it is much more bound like a pension. It looks like a pension, it acts more like a pension, even if there’s an income stream, so then it would fall under part 6.

There may be a scenario where it’s a private purchase of an annuity, and it’s acting more like an income stream. That would fall under part 5. It just depends on how it shows up.

Those were the decisions that guided where we landed in the legislation.

With that, I move that the committee rise….

Interjection.

Hon. N. Sharma: Okay, sure.

Clauses 14 and 15 approved.

M. de Jong: Madam Chair, 16 all the way through to 23…. I have no questions until 24.

Clauses 16 to 23 inclusive approved.

On clause 24.

M. de Jong: Well, time is short. I just wanted to know if the Attorney…. I’d like the Attorney to summarize, in these transitional provisions, what this means for those that are involved in a dispute that is before the courts now.

My reading of it says the previous regime governs, and all of the uncertainty that we’ve talked about continues to govern. These provisions will not be applicable, except to proceedings that begin after this act receives royal assent.

Hon. N. Sharma: This is related to the presumptions, advancement specific to such. I think the member probably has identified that.

[6:25 p.m.]

I’ll just read…. The amendments allow parties who have filed proceedings for divisions of property to continue with their claims under the previous law. Parties may have relied on legal advice and strategy based on case law which existed at the time and may have chosen not to make claims if they understood the application presumption would not be available. This approach is consistent with how property division claims were transitioned when the FLA replaced the FRA.

Hopefully, that provides some clarity on the member’s question.

Clauses 24 and 25 approved.

Title approved.

Hon. N. Sharma: I move that the committee rise and report the bill complete without amendment.

Motion approved.

The committee rose at 6:26 p.m.

The House resumed; Mr. Speaker in the chair.

Report and
Third Reading of Bills

BILL 17 — FAMILY LAW
AMENDMENT ACT, 2023

Bill 17, Family Law Amendment Act, 2023, reported complete without amendment, read a third time and passed.

Committee of Supply (Section A), having reported resolution and progress, was granted leave to sit again.

Committee of Supply (Section C), having reported resolution and progress, was granted leave to sit again.

Hon. M. Dean moved adjournment of the House.

Motion approved.

Mr. Speaker: This House stands adjourned until 10 a.m. tomorrow.

The House adjourned at 6:29 p.m.