Property division for common-law couples who split tackled in new bill

Lawyers have been calling for Alberta to enact legislation to govern property division when common-law partners split up. They say the current process is time-consuming, expensive and unpredictable as there is no case law to rely on.

Lawyers called for changes to gap in Alberta legislation

Bill 28 was introduced Wednesday in the Alberta legislature by Justice Minister Kathleen Ganley. (CBC )

A new bill outlines for the first time how common-law couples in Alberta must divide property when they split up.

Lawyers have been calling for Alberta to enact legislation to govern property division when common-law partners split up. They say the current process is time-consuming, expensive and unpredictable as there is no case law to rely on.

In response to these calls, Bill 28 amends the Matrimonial Property Act, which covers divorcing couples, to include what the law calls adult interdependent partners. The legislation will also get a new name: the Family Property Act.

Lawyer Laurie Allen, partner in the Allen Hryniuk Law Firm in Calgary, says many people in common law relationships mistakenly believe they will be treated the same as married couples when it comes to dividing assets, but that's not the case.

"What that means is that trials are long, costly and involve a demeaning exercise of having the person who's claiming property division — which has always been, of course, the less economically-powerful partner — having to prove that they're entitled to some share of the property," she said.

"This makes cases very difficult to settle and many many people simply cannot afford to litigate and they just give up."

Frank Friesacher, president of the Alberta branch of the Canadian Bar Association, said under the current law, there is no presumption of equal sharing so couples have to go to court to prove who did what in a relationship. 

"The longer the relationship the more difficult it becomes to do this which can make court cases long and complex and make settlement less likely," he said. 

Friesacher credited the Alberta Law Reform Institute for pushing the issue forward last summer with a report on the existing legislative framework and how it needed to change. 

Supporting adult children with disabilities 

Adult interdependent partners are defined as people who live together for at least three years, or who live and have a child together, if they have cohabited for less than three years.  

Two people can enter into an adult interdependent agreement. The relationship can be conjugal or platonic.

Bill 28 also changes the Family Law Act to give a parent the legal means to compel a former common-law partner to continue supporting their disabled child into adulthood.

That change was the result of a successful challenge under the Charter of Rights and Freedoms, launched in 2017 by Calgary mother Christina Ryan.

Ryan's 19-year-old daughter has Down syndrome and other medical conditions that require constant care.

Unlike the federal Divorce Act, which covers married couples, the provincial legislation doesn't allow child-support claims for adult disabled children of unwed couples.

In Ryan's case, the judge ruled the Family Law Act violated the charter. Bill 28 amends the legislation.

Bill 28 also repeals an antiquated law from 1922 called the Married Women's Act, which gave women the right the ability to own, acquire and sell property, enter into contracts, deal with their own debts, and enforce their civil or property rights without their husband's knowledge or consent.

The law was made redundant by the Canadian Charter of Rights and Freedoms.

If passed, the law would come into effect on Jan. 1, 2020.