What is shared and what is not
From the date of separation, each spouse is entitled to half of the family property and is responsible for half of the family debt, whoever’s name is on title. Family property is broad. It covers everything either spouse owns or has a beneficial interest in on that date, including shares in a company, business interests, bank and investment accounts and pension and RRSP entitlements, and property acquired later from those assets. An agreement can change the split, and so can a court in the circumstances described below.
Some property is excluded, and where a family home or savings came partly from one side of the family, the exclusions can decide the outcome. The Act excludes:
- property a spouse owned before the relationship began;
- inheritances, and gifts to one spouse from a third party such as a parent;
- certain damages and insurance payments for personal injury or loss;
- a spouse’s interest in a discretionary trust that someone else settled and the spouse did not contribute to;
- property bought with, or traded for, any of the above.
Three qualifications matter in practice. First, the spouse who says an asset is excluded has to prove it, so records showing where money came from are worth gathering early. Second, any increase in the value of excluded property during the relationship is itself family property and is shared. A house one spouse owned before moving in together, which has since doubled in value, is therefore partly shared even though the original value is not. Third, the court can divide excluded property only in limited cases, for example where it would be significantly unfair not to after a long relationship in which the other spouse helped maintain or improve it.
Money from parents: gift or loan
A down payment from one spouse’s parents can be argued three ways. If it was a gift to that spouse alone, the amount is excluded property. If it was a gift to both spouses, it is family property. If it was a loan, it may be a family debt to be repaid before the rest is divided. The documents written at the time, and the way the money was treated afterwards, decide which, and the evidence of the parents themselves may be needed.
Between the spouses, the Act removes two old legal presumptions: the court may not presume that a transfer from one spouse to the other was a gift, nor that it was held in trust for the spouse who paid. The question is what the spouses actually intended. Parents who want a gift to stay with their own child can make that clearer by putting it in writing, and a marriage or cohabitation agreement can deal with it directly. If an agreement says that specific gifts cannot be disposed of without the giver’s consent, the giver is treated as a party to the agreement for those gifts. Our articles on challenging a BC marriage agreement and on whether family property is always divided equally go further.
Family trusts and companies
Where a parent has set up a family trust, or one spouse holds shares in a family company, the Act draws careful lines. A spouse’s interest in a discretionary trust that someone else settled, and that the spouse did not contribute to, is excluded. But property that a spouse put into a trust is family property if the spouse is a beneficiary with a vested interest in it, or has the power to take it back or to end the trust and have it revert. Shares and business interests are family property unless they fall within an exclusion, for example because they were inherited. For an increase in value of a discretionary trust interest, amounts received from the trust are not counted. Valuing these interests can need the trust deed, the company’s financial statements and sometimes an expert; ask for them early, because each spouse must make full disclosure.
The house itself
Until property is divided, either spouse may need an order about the home. The Supreme Court can give one spouse exclusive occupation of the family residence for a set period, whether it is owned or rented, and can postpone a sale while that order lasts. The order gives no ownership. Where one spouse might sell, mortgage or move money out, the other can ask the Supreme Court to restrain the disposal of property at issue in a property claim, and the court must make that order unless the other spouse shows the claim will not be harmed.
The court can also divide unequally where equal division would be significantly unfair, looking at factors such as the length of the relationship, one spouse’s contribution to the other’s career, and whether a spouse reduced the value of family property or disposed of it in bad faith after separation. See our property division page.
Separating later in life
A separation after a long marriage raises questions a younger couple may not face: dividing pensions, spousal support where one spouse has been out of the workforce for years, and an estate plan built around a marriage that is ending.
- Pensions. Pension division is a Supreme Court matter under Part 6 of the Act; the Provincial Court cannot divide a pension.
- Spousal support. Entitlement is decided first; the Spousal Support Advisory Guidelines then suggest ranges for amount and duration, and under the formula used where there are no dependent children, the suggested duration grows with the length of the relationship. Our spousal support page explains entitlement.
- Your will. Under the Wills, Estates and Succession Act, married spouses stop being spouses for estate purposes when they separate, and unless your will says otherwise, a gift to your spouse and their appointment as executor are revoked. Separation does not, however, change a beneficiary designation on an RRSP, RRIF, TFSA, pension or life insurance policy. Those stay in place until you change them, subject to the plan’s terms and any agreement or order.
- Powers of attorney. If your spouse is your attorney under an enduring power of attorney, their authority ends when the marriage or marriage-like relationship ends. A new attorney should be appointed.
Our estate lawyers in Kerrisdale can update the will and powers of attorney at the same office.
Which court, and which registry
Property, pensions and divorce belong to the Supreme Court, whose Vancouver registry is at the Law Courts, 800 Smithe Street, about 6.5 km by road from our Kerrisdale office. Parenting and support alone can go to the Provincial Court.
For a new Provincial Court case, the rules choose the registry: the one closest to where the child lives most of the time, or with no child issue, closest to the residence of whoever files first. For Kerrisdale that can be either Robson Square downtown or Richmond, on Elmbridge Way. Near Magee Secondary on Maple Street the two courthouses are almost the same straight-line distance away (about 6.2 and 6.3 km), and further south Richmond is nearer. The rule does not say how “closest” is measured, so check with the registry before filing. Both are early resolution registries, which means a notice to resolve, a needs assessment, a parenting course and a dispute resolution session before most applications, with exceptions for urgent and protection matters. In Vancouver those steps run through the Justice Access Centre at 290-800 Hornby Street; in Richmond, through the Richmond Family Justice Centre, virtually and by appointment.
Time limits and divorce
A claim to divide property or a pension, or for spousal support, must be started within two years after the divorce order for married spouses, or after separation for unmarried spouses. Parenting and child support have no fixed deadline. A divorce needs a year of separation (or proof of adultery or cruelty) and at least one spouse habitually resident in BC for the year before filing; it takes effect on the 31st day after judgment unless an appeal intervenes. Read how long after separation you can claim assets, our divorce lawyers page and the Family Law Act overview.
Our family lawyers
The family practice is led by Judith A. Janzen, called in 2000, who joined forces with Candace Cho, KC in 2012. The family team also includes Rupinder Shoker, Susan Kim (who also practises estate litigation and works in Korean), Rasjovan Dale, Katya Richardson, Mason Heller, Shivleen Sidhu and Louisa Ledesma. Susan, Katya and Louisa practise in both family law and estate litigation, which helps where a separation and an inheritance overlap. All profiles are on the team page.
The Kerrisdale office
Suite 201, 5455 West Boulevard is a few blocks north of West 41st Avenue. Meetings by phone or video can be arranged.
Common questions
My parents gave us money for the house. Do I get it back if we separate?
It depends on whether it was a gift to you alone, a gift to both of you, or a loan. A gift to you alone is excluded property, but you have to prove it, and any growth in its value during the relationship is shared.
I owned my condo before we met. Is it mine?
Its value at the start of the relationship is excluded. Any increase in value since then is family property and is shared, unless an agreement says otherwise.
Does separation cancel my will?
Not the whole will. Gifts to your separated spouse, and their appointment as executor, are revoked unless the will says otherwise. Beneficiary designations on RRSPs, pensions and insurance are not, so review them.
Which courthouse will my case go to?
Divorce and property cases go to the Supreme Court; in Vancouver that is 800 Smithe Street. A Provincial Court case about parenting or support goes to the registry closest to the child’s home, which for Kerrisdale may be Robson Square or Richmond.
What does a first meeting cost?
Family files are billed hourly. The terms of a first consultation are explained when you call (604) 900-2538.
