Property and Debt in Family Law Matters

This chapter focuses on the division of property and debt between spouses according to the laws in parts 5 and 6 of the provincial Family Law Act. Under these parts of the Family Law Act, the term spouses refers to married couples, but also to people who were living together in a marriage-like relationship for at least two years.

Under the Family Law Act, after spouses separate the presumption is:

• each spouse keeps the property they brought into the relationship, as well as specific kinds of assets they might have acquired during the relationship (this is called excluded property), and
• the spouses equally share the rest, which means most of the assets either one of them acquired during the relationship, as well as any increase in value of excluded property (these assets are called family property).

The same rules apply to debt. Spouses are presumed to share responsibility for the debts that accumulated during their relationship, but remain individually responsible for debts they had before the relationship began.

The federal Divorce Act doesn't deal with the division of property or debt, so when you're looking at who gets what after separation you need to look at the Family Law Act.

Side note: The Family Law Act is still relatively new, having replaced the old Family Relations Act in 2013. If what you've read so far about property division seems unfamiliar, it might be because you are more familiar with how property division used to work in this province before 2013. The old legislation talked about matrimonial property, which made sense because it only applied to married people. Another major difference was that all property that was "ordinarily used for a family purpose" (including what spouses owned before the marriage) was presumed to be divided up when the marriage ended. When the Family Law Act came in, it changed the law dramatically. It broadened property division to treat married couples and unmarried people in long term relationships the same. But it also narrowed down the entitlement period to focus on what was acquired, what accrued in value, and what debts were incurred while the parties were together in a relationship.

This introductory section of the chapter provides basic information about property and debt. It also looks at the rules about property that apply to couples who are not spouses, and reviews some of the income tax issues that can come up when dividing property. The sections of the chapter that follow will go into:

• Basic Principles of Property and Debt in Family Law, which covers the rules around the division of property and debt in a lot more detail,
• Protecting Property and Debt in Family Law Matters, which discusses the steps you can take to protect family property before and after separation, and
• Dividing Property and Debt in Family Law Matters, which explains how property and debt are divided by judges (where things end with a court order) or by spouses (when they can reach a separation agreement).

Division of property and debt under the Family Law Act

The two parts of the Family Law Act that talk about the division of property and debt only apply to people who are spouses. Note that the definition of spouse for these two parts of the Act are a bit different from the rest of the Act (for example the parts of the Act that deal with child or spousal support). When it comes to the division of property and debt, a spouse is either:

• someone who is married or was married to someone else, or
• someone who is or was living in a "marriage-like relationship" with someone else for at least two years.

People who lived together for less than two years are not spouses for these parts of the Family Law Act, whether they've had a child together or not.

Property and debt can be divided under the terms of a cohabitation agreement or a marriage agreement that the spouses made around the time they began to live together, or under the terms of a separation agreement that they made around the time they separated. If the spouses can't reach an agreement, a court can make an order about the division of property and debt.

Court proceedings for the division of property and debt must be started within two years of:

1. the date of divorce or annulment for married spouses, or
2. the date of separation for unmarried spouses.

Categories of property and debt in family law

The Family Law Act talks about three things when it comes to dividing property and debt: family property, excluded property, and family debt.

All property owned by either or both spouses (including property owned by a spouse jointly with a third party such as a parent) at the date of separation is family property unless it is excluded property. Family property includes things like real property, bank accounts, pensions, businesses, debts owing to a spouse, and so forth. Family property is presumed to be shared equally between spouses, regardless of their use of or contribution to that property.

Excluded property is any property that is excluded from the pool of family property to be split between spouses. This includes the property a spouse owned before the date of marriage or the date the spouses began living together, whichever is earlier, plus certain kinds of property acquired during the spouses' relationship, including:

• property that was bought using property that one spouse already owned before the relationship,
• inheritances and gifts (provided that the gift is a gift to just the spouse and not to the couple), and
• certain kinds of insurance proceeds and court awards.

Excluded property is presumed to remain the property of the one spouse who owns it, but the increase in value of the excluded property becomes family property and is shared.

All debt incurred by either or both spouses from the date of marriage or the date the spouses began living together, whichever is earlier, to the date of separation is family debt. Responsibility for family debt is presumed to be shared equally between spouses, regardless of their use of or contribution to that debt.

Special treatment for pets

As of 15 January 2024, the Family Law Act also addresses family pets, which used to be treated as any other property under the Act. Before this time, pets were like any other asset. If one person brought a dog into the relationship, the animal was excluded property. If two spouses got a cat while they were together, the cat was family property.

The Act now imposes special rules around what happens to pets after spouses separate, and refers to these animals as companion animals. Section 1 defines a companion animal as "an animal that is kept primarily for the purposes of companionship". Section 3.1 further clarifies that dogs under the Guide Dog and Service Dog Act, any animal that kept "as part of a business", and agricultural animals are not companion animals.

See the section discussion on these special rules for companion animals under the Dividing Property and Debt in Family Law Matters section of this chapter. Meanwhile, as you read this page just keep in mind that the information about excluded property and family property will not necessarily apply to these animals.

Beginning and ending a spousal relationship

As you can see, certain dates in a couple's relationship are really important. The date a relationship begins ― the earlier of the dates the spouses begin to live together or marry ― is the date that separates the excluded property brought into the relationship from the family property acquired during their relationship and is the date when spouses begin to share responsibility for new debts. The date the spouses separate, generally speaking, marks the end of the accumulation of shared property and shared debt.

Living together and marrying

Under section 3(3) of the Family Law Act, a relationship between spouses begins

... on the earlier of the following:

(a) the date on which they began to live together in a marriage-like relationship;

(b) the date of their marriage.

Since the definition of spouse at section 3(1)(b)(i) includes people who have lived together "for a continuous period of at least 2 years," once you have reached the two-year mark:

• you and your partner are spouses, and
• your relationship as spouses began two years earlier, on the date you began to live together.

Separating

Although a married couple are married until they get a divorce, the key date for the division of property and debt under the Family Law Act is the date of separation. The separation date is important for both married spouses and unmarried spouses.

Although many people move out when they separate, some couples separate and remain living under the same roof. A physical separation is not necessary to prove separation. What is necessary is an intention to end both the relationship and the intimacies that go along with it. Often the decision to separate is made by both spouses, but it only takes one spouse to decide to end a relationship, and one spouse's decision to separate doesn't require the consent of the other spouse.

Section 3(4) of the Family Law Act says this:

(a) spouses may be separated despite continuing to live in the same residence, and

(b) the court may consider, as evidence of separation,

(i) communication, by one spouse to the other spouse, of an intention to separate permanently, and

(ii) an action, taken by a spouse, that demonstrates the spouse's intention to separate permanently.

In other words, to separate, one spouse should announce the end of the relationship and then take steps that would demonstrate an intention to end the relationship. Separation is discussed in more detail in the chapter Separating and Getting Divorced.

Property brought into the relationship

Under section 85(1)(a), property that was brought into a relationship is excluded from the pool of family property that is supposed to be divided equally between spouses. Under section 96, the court "must not" order a division of excluded property, except in limited circumstances. A spouse is therefore normally entitled to keep the excluded property they owned when the relationship began. Under section 85(2), however, it is up to the person who's saying that property is excluded property to prove that the property is excluded property.

For most couples, property brought into a relationship will form the largest component of a spouse's excluded property. However, when most people marry or move in together, counting up their assets is not the foremost thing on their mind. This means that you may wind up having to do some historical accounting to figure out what you each owned years ago. Whether you're just starting a relationship or are trying to figure out what you once had, these are the documents you need to look for:

• bank statements for the period that includes the date you began to live together or got married, whichever came first,
• RRSP, RIF, LIRA, and other retirement savings account statements for the same period,
• any employee pension statements that cover the date you began to live together or got married,
• mutual fund and other investment account statements for that period,
• any BC Assessment statements for the year in which you began to live together or got married,
• mortgage and line of credit statements for the period that includes the date you began to live together or got married, and
• credit card and loan statements for that period.

It will be a harder to look back in time to figure out the value of things like cars, motorcycles, trailers, boats, snowmobiles, and so on. If you're entering a relationship now, it will be helpful to look up the Canadian Black Book or Kelley Blue Book estimated values for vehicles. Boats and trailers may need to be specially valued by a dealer. It is important to note that you cannot exclude the value of the property calculated from the start of the relationship. For example, let's assume one party owned a car worth $20,000 at the beginning of the relationship. Say it is only worth $10,000 at the time of separation. That party gets to keep the car itself, but does not get $20,000 worth of property out of family property. If the car was traded in towards the purchase of a second car during the relationship, however, the trade-in value would be excluded property.

Property and debt acquired during the relationship

In most circumstances, the property either or both spouses acquire during their relationship will be family property, but there are some important exceptions.

Understanding family property

Under section 84(1) of the Family Law Act, family property is broadly defined as the property owned by one or both spouses on the date of their separation, including any property bought after separation with family property. Section 84(2) gives some examples of specific assets that are family property, including:

• interests in companies, businesses, partnerships, and ventures,
• money owed to a spouse, and
• bank accounts, savings, pensions, and RRSPs.

While that sounds pretty broad, you have to read section 84 as being "subject to section 85" to understand that family property does not actually include excluded property. Family property does, however, include the amount that any excluded property grows in value during the relationship.

Under section 81, family property is presumed to be shared between the spouses equally, regardless of their use or contribution to that property. Note that while sharing equally is the presumption, there are circumstances (discussed in section 95) where it would be significantly unfair to do so, in which case a judge can order that family property be divided unequally. This is also called reapportionment of family property.

For information on how to share CPP credits see How Do I Divide Our CPP Pensions after We're Divorced?. It's located in the Helpful Guides & Common Questions part of this resource.

Understanding excluded property

Under section 85(1), excluded property is property acquired by a spouse before the relationship began, plus specific kinds of property that was acquired during the relationship, namely:

• gifts from a third party (provided that the gift is a gift to the spouse and not to the couple),
• inheritances,
• certain court awards and settlements,
• certain insurance payments, and
• property held in trust, providing that the spouse didn't put the property into the trust.

Excluded property also includes any new assets that were derived from other excluded property. This is also contained in section 85(1)(g). For example, if you owned a house before the relationship, but sold it during the relationship and used some of the money to buy a condo, and the rest of the money to top up your RRSPs, then both the condo and the money that's now in RRSPs would be excluded property. This is true even if you registered the new condo in your spouse's name, or in both your names. Provided that the money used to acquire this new property is clearly derived from the excluded property, the Family Law Act treats this newly acquired property as excluded property.

Excluded property that is acquired during a relationship is presumed to remain the property of the spouse who owns it. While section 85(2) says that it's up to the person claiming excluded property to prove that it is in fact excluded, the legislation is clear — especially since the Family Law Act was amended and section 85(3) was added in May 2023 — that transferring it into the name of the other spouse, using it to buy new property, or using it to pay down the mortgage on the family home, does not mean that the asset itself (or its cash equivalent) ceases to qualify as excluded property.

Note that while the presumption is you don't share excluded property, there are circumstances (discussed in section 96) where the judge can order that excluded property be divided and shared with the other spouse. This is another form of reapportionment, and can happen when a judge decides that:

• family property or debt exists outside of BC and cannot practically be divided, or
• it would be significantly unfair not to divide the excluded property given the duration of the relationship and:
  • the other spouse's contributions to the preservation, maintenance, improvement, operation or management of the excluded property,
  • any agreement the spouses had about the excluded property, or
  • if unequal reapportionment of family property or debt under section 95 would not be enough to address the extent significant unfairness.

understanding family debt

Under section 86, family debt is all debt incurred by either or both spouses during their relationship up to the date of their separation, but can include debt incurred after separation if the debt was incurred to maintain family property, like a loan taken out to pay the property taxes.

This definition means that debt incurred by a spouse before the spouses married or began to live together is that spouse's personal debt; it's only the new debt that they share. Under section 81, responsibility for family debt is presumed to be shared between the spouses equally, regardless of their use or contribution to that debt. This said, there are circumstances (discussed in section 95) where it would be significantly unfair to make the parties equally responsible for a debt, in which case a judge can order that family debt be divided unequally. This is called reapportionment of family debt.

Dividing property and debt: an example

Let's look at an example to make things a bit easier to understand.

Harkamal moved in with Baljinder in 2018, when Baljinder's home was worth $800,000 and had no mortgage.

Harkamal starts going to college in 2019 and takes a personal loan to help pay for her tuition fees, lab fees, and textbook costs. Baljinder keeps working while Harkamal is at school and not working. With his income, Baljinder pays property taxes, car insurance, utilities, groceries, and so forth. He's also able to put some money away into RRSPs for the first time ever.

Harkamal and Baljinder separate in 2022. When they separate, Harkamal owes $18,000 for her personal loan, Baljinder's house is worth $1,000,000 and Baljinder has saved $30,000 in RRSPs.

In this example, Baljinder's house is his excluded property. It was worth $800,000 when Harkamal began living with him, and it has increased in value by $200,000. The family property is the RRSPs that Baljinder saved, plus the increase in value of Baljinder's house during the relationship. The family debt is Harkamal's loan which was incurred entirely during the parties' relationship and is now up to $18,000.

Boiling this all down, subject to a claim for reapportionment, Baljinder would get:

• $800,000 as the value of the home he brought into the relationship,
• $100,000 for one-half of the growth in the value of his house to the date of separation,
• RRSPs worth $15,000, and
• responsibility for $9,000 of Harkamal's loan.

Harkamal would, subject to a claim for reapportionment, get:

• $100,000 for one-half of the growth in the value of Baljinder's house,
• RRSPs worth $15,000, and
• responsibility for the remaining $9,000 of her loan.

Property claims and people who aren't spouses

People who are not spouses within the Family Law Act definition at section 3, described above, cannot make a claim for the division of property or debt through that act. When people who aren't spouses own an asset jointly, like a house or a car, they are presumed to each be entitled to half of the value of that property. Where a person claims a share of property owned only by the other person, they will have to prove an entitlement to that asset through the principles of the common law.

Jointly-owned assets

Where a couple are both on the title of an asset, whether the family home, a car, or a bank account, they are each assumed to have an equal interest in the asset. When one party refuses to give the other their share of that asset, it is open to that person to start a court proceeding for either:

1. an order for the sale of the asset and the division of the proceeds of the sale, or
2. an order for payment in compensation for their interest in the asset.

Where real property is jointly owned, it is possible to make a claim under the provincial Partition of Property Act. Section 2 of this act says that:

(1) All joint tenants, tenants in common, coparceners, mortgagees or other creditors who have liens on, and all parties interested in any land may be compelled to partition or sell the land, or a part of it as provided in this Act.

(2) Subsection (1) applies whether the estate is legal or equitable or equitable only. This act allows a co-owner, including someone with only an equitable interest in the property, potentially including an interest under the law of trusts as discussed below, to apply for an order that the property be sold and the proceeds of the sale divided.

In other words, if you jointly own real property with your partner, you can apply to court for an order that the property be sold and the proceeds of the sale be split between you.

Individually-owned assets

Where a person who is not a spouse believes that they should have an interest in property owned only by the other person, a claim against that property can only be made under the common law, specifically the law of equity and the law of trusts.

The essential point of this sort of claim is that the non-owning party has, or should be considered to have, a stake in property owned by the other party. The non-owning party's interest in that property is said to be held in trust for the non-owning party by the person who owns the property on paper. The non-owning party is the beneficiary of that trust and should be entitled to receive compensation for their interest in the property under the trust.

There are three kinds of trust claim that may be made:

• a constructive trust,
• an express trust, and
• a resulting trust.

A resulting trust happens when the behaviour of the parties will let the court infer the existence of a trust relationship; an express trust is a trust relationship that people intentionally enter into; and, a constructive trust is imposed in order to compensate someone for their interest in property when the interest can't be paid out immediately. Resulting and constructive trusts are the most common kinds of trusts involved in family law disputes about property.

Needless to say, this area of the law can be complex. If you find yourself in a situation where your only claim to an asset or a share of an asset is through trust law, it is recommended that you consult with a lawyer to handle your claim.

Resulting trusts

A resulting trust can be created in the following circumstances:

• one party loans or gives money to the other party to allow them to buy an asset, and the person buying the asset owns the asset in their name alone, or
• one party transfers property to another without payment.

In each case, the person who transfers the money or asset to the other party is said to retain an interest, called a beneficial interest, in the property even though the property is held by the other party in their name alone. In a court proceeding based on a resulting trust, the person making the claim, the claimant, is asking for compensation for their beneficial interest in the property owned by the respondent, the person against whom the claim is brought.

Unjust enrichment and constructive trusts

A constructive trust is called constructive because the claimant is asking the court to create or impose a trust on the respondent where there wasn't one before. According to the Supreme Court of Canada's decision in the 1980 case of Pettkus v. Becker, [1980] 2 S.C.R. 834, one of the most important cases on constructive trusts, the court will impose a trust on a respondent where the claimant is able to show that the respondent has been unjustly enriched as a result of the claimant's labour or other services. Unjust enrichment is shown by proving that:

1. the respondent was enriched as a result of the claimant's contributions,
2. the claimant was correspondingly deprived, and
3. there is no legal reason for the respondent's enrichment.

Enrichment means to have received a benefit or advantage, such as money or the benefit of unpaid labour or other services. Deprivation means to have lost the value that might have been otherwise received for the claimant's benefit or advantage, such as the loss of the money or the wages that might have been paid for labour or other services. The deprivation must correspond to the enrichment, in the sense that the claimant was deprived of exactly the thing from which the respondent benefited. If the claimant can show these things, they will have established that the respondent was unjustly enriched by their contributions, and the court may impose a constructive trust to fix the situation.

(There are two other cases from the Supreme Court of Canada that are critical in understanding constructive trusts, a 1993 case called Peter v. Beblow, [1993] 1 S.C.R. 980, and a 2011 case called Kerr v. Baranow, [2011] 1 S.C.R. 269. To get a proper understanding of the law relating to constructive trusts, you should read all of Pettkus v. Becker, Peter v. Beblow, and Kerr v. Baranow.)

Here's an example where a couple doesn't live together long enough for the Family Law Act to apply, and so (because they are not yet legally spouses) an unjust enrichment and resulting trust claim might be the only option:

Frank moves into a home owned by Lois. Frank's role in the relationship is that of a homemaker while Lois works outside the home and brings home the bacon. Frank also, out of the kindness of his heart, helps Lois with her web design company, doing her books because he used to be a bookkeeper.

Lois doesn't pay Frank for his labour; perhaps it's understood that Frank is helping out with a common cause, since Lois's company is what provides the family with its income, or perhaps Frank's help is just one of the things he does because he loves Lois. Either way, payment isn't offered and it's not asked for, as is often the case when people are in a relationship.

Frank's labour in the home, cooking, cleaning, and tidying, allows Lois to devote her time to the web design company, and saves her from having to hire a housekeeper and a cook, not to mention having to hire an office manager for the company.

Frank, on the other hand, is losing something. Frank could have sold his services as a housekeeper, a launderer, and a cook. Frank could certainly have worked as an office manager or bookkeeper for some other company. Furthermore, Frank has made a positive contribution to Lois' company and helped it thrive and prosper.

The months pass. Lois's company has grown in value, and the relationship comes to a tragic end when Frank discovers that Lois' trips to visit the handsome internet service provider in Alberta were for both business and pleasure.

In this example, Lois was unjustly enriched by Frank's labour in the home and his contribution to the web design company, as she didn't have to hire an office administrator or a housekeeper. Frank, on the other hand, lost out on months of wages as an office administrator, and months of wages as a housekeeper. Lois was enriched by exactly the thing Frank was deprived of: his labour, and the financial value and benefit of his labour.

Once an unjust enrichment has been found, the court must determine what the appropriate remedy would be to compensate the applicant for their interest in the property. The court will often determine the value of the trust based on the value of the contribution made by the applicant to the property or the purchase of the property.

In the example above, a concrete value can be attached to Frank's contributions to the company and to his labour in the home: what would it have cost to hire a housekeeper and a bookkeeper during that period? Or, how much did Lois' company grow in value as a result of Frank's efforts? This is the beginning of fixing a dollar value on Frank's interest in the company and in Lois's house.

Again, trust claims are complex and the case law supporting and opposing such claims is massive. If you are not married to the person, and if you have not lived with them long enough to qualify as an unmarried spouse under the Family Law Act, but you still wish to make claim against property owned only by your partner, I recommend that you obtain help from a lawyer.

Tax issues

For many people, there will be no tax impact from the division of their assets. There will, however, be a tax impact if the division creates what the Canada Revenue Agency deems to be income.

The most common kind of taxable income people have is employment income. Some other kinds of taxable income include:

• the money you get when you cash in an RRSP,
• money received by a shareholder from a company as a dividend or from the sale of their shares,
• the interest you get from a loan you've made to someone else, and
• the profit realized from the sale or transfer of real property that isn't the family's principle residence.

When you report this sort of income in your tax return, the CRA considers it to be taxable income, income that may be taxable at different rates.

The purpose of this part of this section is to alert you in a general way to the possibility that there may be tax implications as a result of family property being divided, and that there are sometimes ways to avoid this sort of unfairness. This is, however, a complex area of family law, and if you have a problem of this nature, you really should get the advice of a lawyer who specializes in tax issues; store-bought or online tax software will not identify these issues. You probably don't want to pay any more tax than is absolutely necessary!

Avoiding unfairness

The tax consequences of a particular arrangement in a court order or separation agreement can be taken into account when property is being divided, since the payment of tax by one party may fundamentally change the fairness of the agreement or order. Consider this example:

Say Eli receives $1,000,000 in cash and George receives a rental house worth $1,000,000, and the cash and the rental house are all part of the family property. At first glance, this seems like a fair, equal split of the family property, which together comes to a total of $2,000,000. In fact, it isn't.

No tax will be payable by Eli as a result of receiving the cash. Tax will be payable by George if the rental house has to be sold, since it was a rental property and not the family's primary residence. What if the capital gains tax that George has to pay when he sells the rental property is $200,000? In that case, Eli has received $1,000,000 and George has effectively received only $800,000. If you count the tax that George has to pay, the division of the family property wasn't equal at all.

To make the split equal, Eli should receive $900,000 and George should receive $100,000 plus the rental house so that each spouse will have $900,000 once the rental house is sold.

The same problem can arise if one spouse has to sell an asset in order to satisfy an order or agreement for the division of property and debt, such as making a lump-sum payment to equalize the value of the assets held by each party. This may result in the CRA assessing an extra amount of taxable income to the party who had to sell the asset, with the consequence of an additional tax debt owed by that party to the CRA.

There is an easy way to avoid unfair tax consequences and preserve the intention of the agreement or court order: the agreement or order can recognize the negative tax consequences of a particular term and compensate the affected spouse, as in the example involving the rental house above. If you need to convince a court to take tax considerations into account in dividing assets, there are three general rules you should keep in mind:

• each case will depend on the particular circumstances of the parties,
• you should be able to provide an estimate of the tax which will be payable, and
• you must be able to show that the sale or transaction that will result in tax being payable is likely to occur in the reasonably near future.

Dividing RRSPs

Normally, if you wish to cash out an RRSP, you have to pay tax on the RRSP as if the RRSP was taxable income, like employment income. Under the federal Income Tax Act, transfers of RRSPs between spouses are tax neutral, under what are called the tax-free spousal rollover provisions of the act.

When RRSPs are to be transferred between spouses according to a separation agreement or court order, the RRSPs are simply transferred between the spouses' RRSP accounts without having to cash them out, and no tax is payable. Your bank or credit union can provide you with the form to do this.

Real property

When a piece of property is to be transferred between spouses according to a separation agreement or court order, the parties should consult the Ministry of Finance's Tax Bulletin PTT 003. Spouses can take advantage of the tax-free status of transfer of real property if the transfer is required by a family agreement or court order. The form is normally completed during the process of transferring title to the property at the Land Title and Survey Authority, and no tax will be payable on the transfer. The Land Title and Survey Authority form needed to do this is now completed and submitted online, and a copy of the signed separation agreement or court order or divorce decree needs to be submitted with the return.

Resources and links

Legislation

• Family Law Act
• Partition of Property Act
• Income Tax Act

Links

• Dial-A-Law Script "Dividing Property and Debts"
• Justice Education Society's handbook Parenting After Separation: Finances
• Legal Aid BC's Family Law in BC website's information page "Property & debt"
  • See "Dividing property and debts"
• Ministry of Finance's Tax Bulletin PTT 003

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Trudy Hopman, October 19, 2023.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.