Assets of Couples (3:IX)

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 12, 2021.

A. Family Law Act

Under the FLA, a court may issue a family law protection order against a family member in a dispute when there is a likelihood of family violence. Family violence is inclusive of physical, emotional, or psychological abuse. When children are involved, both direct and indirect exposure to violence meet the definition of family violence in s 1 of the Act.

Applications for a protection order can be made alongside applications for other family court orders or on their own. The involvement of the criminal justice system is not required. Applications can be made in both Provincial Court and Supreme Court.

There is no cost to apply for a protection order in BC Provincial Court. If you are seeking a divorce, you may apply for a protection order at the BC Supreme Court for a fee ($80 for divorce proceedings that have begun, and $200 if not). It is possible to obtain an order to waive fees at the Supreme Court. The Legal Services Society publication “For Your Protection” outlines the process and the forms required to seek a protection order. https://family.legalaid.bc.ca/publications/your-protection

Before issuing a protection order, courts will consider the history of family violence, the nature of that violence, the present relationship between the at-risk family member and the violent family member, and circumstances which increase the risk of violence or the vulnerability of the at-risk family member (s 184(1)).

Protection orders may prohibit direct or indirect communication, attending locations frequently entered by the at-risk family member, and possessing a weapon (see s 18(3) for additional prohibitions). Unless the court establishes otherwise, an order will expire one year after the date it is issued.

B. Legislation

1. Divorce Act [DA]

The DA does not deal with property division.

1. Family Law Act [FLA]

Section 81 of the FLA outlines that each spouse is entitled to an undivided, one-half interest of family property and is equally responsible for debt upon separation (Stonehouse v Stonehouse, 2014 BCSC 1057; Joffres v Joffres, 2014 BCSC 1778). However, the FLA substantially changes what is considered to be family property, essentially allowing spouses to keep property they bring into a relationship and share only in the increase in value of that property and the net value of new property obtained after cohabitation or marriage.

The FLA carves out a category of excluded property under section 85. Section 85 (1) of the FLA reads as follows: The following is excluded from family property:

• (a) Property acquired by a spouse before the relationship between the spouses began;
• (b) Inheritances to a spouse;
  • (b.1) Gifts to a spouse from a third party;
• (c) Aa settlement or an award of damages to a spouse as compensation for injury or loss, unless the settlement or award represents compensation for
  • (i) Loss to both spouses, or
  • (ii) Lost income of a spouse;
• (d) Money paid or payable under an insurance policy, other than a policy respecting property, except any portion that represents compensation for
  • (i) Loss to both spouses, or
  • (ii) Lost income of a spouse;
• (e) Property referred to in any of paragraphs (a) to (d) that is held in trust for the benefit of a spouse;
• (f) Aa spouse's beneficial interest in property held in a discretionary trust
  • (i) To which the spouse did not contribute, and
  • (ii) That is settled by a person other than the spouse;
• (g) Property derived from property or the disposition of property referred to in any of paragraphs (a) to (f).

Any increases in the value of the excluded property that occur during the relationship are considered family property and are not excluded from division. The spouse claiming that the property in question qualifies as excluded property is responsible for demonstrating that it fits the definition under s 85(1) (Bressette v Henderson, 2013 BCSC 1661).

This property division regime applies to all married spouses as well as all unmarried common-law spouses who have lived in a marriage-like relationship for at least two years. The date of separation will be the relevant date used to identify the pool of family property to be divided. However, it is the date of the hearing or agreement which determines the date of valuation of property. Spouses may choose to opt out of these property division rules but must make these different arrangements through an agreement.

Family property, is defined at s 84(1):

• (a) On the date the spouses separate,
  • (i) Property that is owned by at least one spouse, or
  • (ii) A beneficial interest of at least one spouse in property;
• (b) After separation,
  • (i) Property acquired by at least one spouse if the property is derived from property referred to in paragraph (a) (i) or from a beneficial interest referred to in paragraph (a) (ii), or from the disposition of either, or
  • (ii) A beneficial interest acquired by at least one spouse in property if the beneficial interest is derived from property referred to in paragraph (a) (i) or from a beneficial interest referred to in paragraph (a) (ii), or from the disposition of either.

1. Supreme Court Family Rules [SCFR]

The Supreme Court Family Rules contain a number of procedural provisions for dealing with property. For example, Rule 12-1 allows for the detention, preservation, and recovery of property that is the subject matter of a family law case. Rule 12-4 allows for a pre-trial injunction. Rule 15-8 permits the Court to order a sale of property if it appears necessary and expedient that the property be sold. Where a dispute arises, an application can be made to the Supreme Court to settle the matter, but clients should be advised that a court action is costly and a negotiated settlement is generally to their advantage because courts have a wide discretion to distribute family property. For example, a court could order the sale of property at a time when the housing market is poor, resulting in a low sale price. Sometimes, a spouse should consider selling their interest in a property to the other spouse.

G. Limitation Period

© Copyright 2023, The Greater Vancouver Law Students' Legal Advice Society.