The date that sets the value
Under the Family Law Act, family property is valued at its fair market value, and the valuation date is the date of the agreement that divides it or, if the spouses go to court, the date of the hearing. It is not the date of separation. If the market moves between the day you separate and the day you settle or go to trial, the gain or loss is shared. The spouses can agree on a different date or method, and the court can order one. Pensions are the exception: they are divided under their own rules, not valued this way.
Two practical points follow. A valuation obtained early in negotiations may be out of date by the time the matter settles, so plan for an update. And the spouse who stays in the home, or who wants to keep it, carries the risk and the benefit of the market in the meantime, which is one reason to agree on a timetable.
One appraiser instead of two
A property with unusual features, such as a large lot, outbuildings or space used for animals or rented out, can produce widely different appraisals. The Supreme Court Family Rules address that. Where a party wants to put expert evidence before the court on a property or pension division issue, it must come from a jointly appointed expert, unless the court orders otherwise or both spouses agree to something else.
Before a joint expert is appointed, the spouses have to settle who the expert is, what issue the report is meant to resolve, the facts they agree on and any assumptions each wants considered, the questions the expert will answer, when the report is due and who pays. Those details are worth getting right: an appraiser who is told to value the property “as is” will give a different figure from one told to assume a sale for redevelopment. Our property division page explains the wider process.
When part of the property was one spouse’s before
The Act carves out what a spouse already had when the relationship started, and what came to one spouse alone by inheritance or as a gift from someone else. Where the land itself was brought in by one spouse, its worth on the first day of the relationship remains that spouse’s; what it has gained since then goes into the pool to be shared. Proving an exclusion is the job of the spouse who relies on it.
For land, that means two values may be needed: what the property was worth when the relationship began, or when the excluded money went in, and what it is worth now. If family money was later spent on a new barn, a renovation or the mortgage, tracing what came from where takes records: purchase documents, bank statements, the dates of any refinancing and any earlier appraisals. Gather them early. Our article on inheritance and divorce in BC and the one on what happens when your spouse receives an inheritance go into more detail.
Paying for the case before anything is sold
Where most of a couple’s wealth is in the land, one spouse may have little cash for legal fees, mediation or the appraisal itself. The Supreme Court can order an interim distribution of family property that is at issue, to fund family dispute resolution, the court proceeding or the gathering of information or evidence, if it is satisfied that doing so would not harm the other spouse’s interests. That can mean an advance from the sale proceeds of another asset, or from funds held in trust, before the final division.
Living there, and protecting the property, in the meantime
Either spouse can apply to the Supreme Court for an order giving them exclusive occupation of the family residence for a set period. That order does not give ownership and does not allow the occupying spouse to make material changes to the property. Where there is a risk that one spouse will sell or mortgage the land, or move money out, the other can ask the court to restrain them from disposing of property that is at issue in the property claim.
After separation, each spouse should avoid letting the property run down or making major changes without agreement. When the court decides whether an equal division would be significantly unfair, one of the things it can consider is whether a spouse, after separation, caused a significant decrease or increase in the value of family property beyond market trends.
Rent, animals and equipment on the property
Where part of the property is rented out, the tenancy continues regardless of the separation, and the rent keeps coming in. Under the Act, property acquired after separation that is derived from family property is itself family property, so rent collected from a shared property after separation is not simply the collecting spouse’s money; keep it in a separate account and keep records of what is paid out for the property. Horses, equipment, vehicles and tack are property like any other: they are family property unless an exclusion applies, they need to be listed and valued, and someone has to pay for their keep while the case is going on. If you cannot agree on who looks after them in the meantime, that can be dealt with by agreement or by an interim order.
Sale, buy-out or partition
A division of a property like this can end in one of three ways: one spouse buys the other out, the property is sold and the net proceeds divided, or one spouse keeps it and the other takes other assets of equal value. Where the spouses cannot agree, the Supreme Court can declare who owns or may possess the property, order title transferred, order one spouse to pay the other compensation, order the property partitioned or sold with the proceeds paid out in set shares, and require security for an obligation under the order. A buy-out needs financing that a lender will approve, so arrange it before agreeing to a deadline.
Which court, and which registry
Property division, pension division and divorce are decided by the Supreme Court. Its Vancouver registry is at the Law Courts, 800 Smithe Street, about 10 km by road from Celtic Avenue.
If the dispute is only about the children or child support, the Provincial Court can hear it, and a new case there belongs in whichever registry is nearest the child’s main home; where no child is involved, the first person to file decides it by their own address. In Southlands that is a real question. Measured in a straight line from Celtic Avenue, the Richmond courthouse on Elmbridge Way is about 5.8 km away and Robson Square downtown about 8.1 km; by road they are almost the same (10.2 and 10.5 km). Depending on the street, either may be the right registry, and the rule gives no method for measuring, so a phone call to the registry before filing is sensible. Richmond and Robson Square both run as early resolution registries; in Richmond, those early steps are run by the Richmond Family Justice Centre, virtually and by appointment, and in Vancouver by the Justice Access Centre at 800 Hornby Street.
Our family lawyers
The family group is led by principal Judith A. Janzen, at the bar since 2000; the firm took its present form when she and Candace Cho, KC joined forces in 2012. Working with her on property files are Susan Kim, Mason Heller, Rupinder Shoker, Katya Richardson, Shivleen Sidhu, Louisa Ledesma and Rasjovan Dale. Read about each of them on the team page.
If the property came to one of you by inheritance, or a will needs changing after separation, see our Southlands estate lawyers.
Common questions
We separated two years ago and the property has gone up in value. Whose gain is it?
Both of yours. Unless you agree otherwise, the property is valued at the date you sign an agreement or at the hearing, so a rise or fall since separation is shared.
Do we each need our own appraiser?
Not necessarily. For a property division claim in the Supreme Court, expert evidence must come from a jointly appointed expert unless the court orders otherwise or you both agree to use your own.
The land was mine before we met. Is it excluded?
What it was worth when the relationship began, meaning the earlier of moving in together in a marriage-like relationship or marrying, can be kept out, provided you can prove it. Growth after that date is shared.
I cannot afford the legal fees until the property is sold. What can I do?
Ask the Supreme Court for an interim distribution of family property to fund the case, mediation or an appraisal. The court must be satisfied it would not harm your spouse’s interests.
How do you bill?
Hourly, for all family files. Phone (604) 900-2538 to ask about a first consultation.
