The parts of the family law act that talk about the division of property and debt. The bc family law act and your assets blueshore financial. There are obvious exceptions to this rule, which will be covered in a future blog, but that does beg the question was is family property. Agreements respecting family law disputes generally. If you separated from your spouse or partner on or after january 1, 2020, read this insert before reading the rest of the booklet. However, there are certain exceptions to this general rule.
Excluded property in bc family law everything you need to know. Though some changes are only minor updates to the current. The new act overhauls the bc family law system and brings with it many changes. If they end up separating, the bc family law act provides for excluded assets, which includes that the value of the assets each spouse had. Protecting gifts and inheritances in family law toronto. The new act has completely replaced the existing family relations act. Net family property is the value of each spouses property, after deducting debts and liabilities at the time of separation, and then deducting the value of assets brought into the marriage other than the matrimonial home. The new family law act received royal assent on november 24, 2011 and came into force march 18, 20. The new fla property division rules state that on separation each spouse has a right to an undivided half interest in all family property with the exception of excluded property. Excluded property is the property each spouse has on the date they began to live. Excluded property pursuant to the family law act where. However, it seems to have at times confused and created a colourful selection of cases, with judges grappling with how to bring fairness to each case while being in compliance with our relatively new legislation.
Dividing property and allocating debt under british columbias. The family law act came into force on march 18, 20. Excluded property under the family law act rp lawyers. The family law act, sbc 2011, c 25 is a law created by the government of british columbia that you can find, along with other provincial laws, at the website of the queens printer or on canlii, a free website that lets you search canadian laws and court decisions. There are two courts that handle almost all family law litigation in british columbia, canada. As well, the excluded property division model is a better. Guide to the new bc family law act 1 introduction on november 24, 2011, the new family law act fla became law. A very brief introduction to the family law act pdf. Family property also includes any increase in the value of excluded property that happens during the relationship. Family property is shared equally between spouses unless you agree otherwise. Family property includes, in principle, all assets acquired by either partner during the relationship, apart from the excluded property listed above. Here are a couple of examples of what might happen. Valuing family property and family debt family law act. Under british columbia s family law act, the rule of thumb is that all family property will be divided equally between spouses when they separate.
The act defines net family property as the value of the property that each spouse owns on the valuation date, after deducting debts and liabilities, net of the value of property at the date of marriage, after deducting debts and liabilities. In addition, the new fla has changed the game when it comes to interests in discretionary family trusts. Also, if during your marriage you receive a gift, inheritance or a personal injury settlement, those all belong to you and are not subject to 5050 division upon separation, unless you gift them to. The case law has, therefore, had to deal with a variety of scenarios where the gift or inheritance is either comingled with other assets andor converted to other property. Excluded property divorce, separation and family law victoria, bc october 14, 2016 family law act, property the new family law act in b. Inheritance, gifts and excluded property and property. Excluded property could become family property if one spouse. In ontario, the family law act 1990 the act excludes certain property from the net family property calculation. Family property now includes all property owned by one or both spouses at the date of separation unless the asset is excluded, in which case only the increase in the value of the asset during the relationship is divisible.
Changes to division of property in the bc family law act. Under the bc family law act there is a provision that allows for excluded property. You may lose your excluded property under the bc family. In family law, the property married spouses and unmarried spouses share is. The court may divide excluded property if it cannot divide family property. Excluded property in british columbia family law baker newby. Excluded property in bc means property you bring in to your relationship or marriage. This change effected a new property right regime for separating spouses. Heated debates by lawyers ensued and so did litigation. However, most of the act will not come into effect until march 18, 20.
Bc family property includes all real and personal property owned by one or both spouses at the date of separation unless the asset in question is excluded, in which case only the increase in the value of the asset during the relationship is divisible. Shih, 2017 bcca 37, the court gives some more guidelines on what they. A law, in this sense of the word, means a rule made by the government. The value of each spouses net family property will be calculated. Here are definitions of some of the most common new terms and changes to old terms that will be used under the new act. When the family law act came into force it introduced an excluded property regime to british columbia s family law. On january 1, 2020, albertas matrimonial property act became the family. Encourages families to resolve their disputes outofcourt. The difference between the two classes is that on the breakdown of a relationship the parties are. Section 85 1 of the family law act provides what is excluded family property section 85 2 of the family law act provides that a spouse claiming that property is excluded property is responsible for demonstrating that the property is excluded property. A family law lawyer will be hired to serve as a resource for the court, and to support the development of jurisprudence under the family law act and various initiatives for improving access to justice. Family property excluded property family debts these are the assets that either spouse got during the relationship. Bcs family law act provides a set of rules for dividing property of separating couples who are married or who have lived with each other in a marriagelike relationship for a continuous period of at least 2 years when couples make marriage and cohabitation agreements, they are contracting out of this default scheme for dividing property a lot, or a little, depending on the individual. The new family law act reforms property division so that certain property, such as prerelationship property and inheritances generally will not be divided up.
Excluded property is not divided at the end of the relationship. The bc family law act and your assets important rules for dividing property in the bc family law act. There are some substantive changes in the law that have come with the new act if you are going through a separation or divorce or even considering. Family property is divided equally at the end of the relationship. There are two main laws that apply to family law problems in bc.
Specifically, section 85 of the family law act established two categories of property at separation of married or unmarried spouses. Shih, 2015 bcsc 2108 canlii provides guidance as to the type of evidence one must provide to the court in. When the family law act came into force in 2014, it introduced an excluded property regime to british columbia s family law. Excluded property is presumed to remain the property of the spouse who owns it. The family law act takes an entirely different approach to property and debt than. How to prove property is excluded under the bc family law act. Property held by discretionary trusts is excluded property paragraph 851f provides that. Family law act section notes part 5 property government of b. Gifts, inheritances and other excluded property free.
If you separated from your spouse or partner on or. When the family law act introduced the concept of excluded property back in 20, it became the hottest topic in the legal town. Pursuant to the legislation, there are several categories of excluded property. Spouses regularly mix excluded assets with other family assets or use excluded assets in order to purchase other property during the marriage.
A handy, downloadable pdf of the law is also available online through a service called quickscribe. Avoid bc excluded property mistakes maclean family law. Under the family law act, excluded property is protected from division and remains the property of one spouse. Property held by discretionary trusts and the family law act. Under the family law act fla, property owned by the spouses at the time of separation is categorized as either family property or excluded property. The family law act of british columbia is the provincial legislation that governs the division of property in british columbia. Excluded property is listed in s 852 of the family law act and includes.
Excluded family property in bc family law nasser allan llp. How the new family law act could affect your family trust. The law surrounding property division is found in the family law act. The property division scheme under the family law act applies to married spouses and unmarried spouses who are cohabiting in a marriagelike relationship for at least two years sections 3 and 81 spouses in either of these two categories may apply to court for a.
Since the introduction of the bc family law act, the court has struggled with how a spouse may prove property is excluded. The introduction of the family law act and its regime on what is called excluded property was thought to bring more clarity, efficiency and fairness to family law litigation in b. The family law act moves to an excluded property model that involves less judicial discretion, particularly at the initial stage of identifying which assets are. When the family law act fla, came into force on march 18, 20, it introduced a notable change the concept of excluded family property in bc. Section 4 of the family law act also describes excluded property, which, although owned on the valuation date, is excluded from a parties net family property. Division of excluded property the court may divide excluded property if it cannot divide family property located outside province or if it would be significantly unfair not to divide excluded property s.
Under section 85 of the family law act, any property acquired prior to cohabitation and brought into the relationship is excluded from the division. Excluded property in a divorce victoria family law. Excluded property in british columbia family law baker. The family law act also reformed the division of property, listing the types of property that are excluded from family property and generally will not be divided up after the parties separate. The parties were married for almost 10 years in a traditional marriage. The family law in bc quick reference tool by the legal services society also provides answers to frequently asked questions about the family law act, including information about what happens if you were separating or separated before the act took effect. Each law deals with different issues, although they share a lot of issues in common. Santerre of jenkins marzban logan llp, vancouver, bc, for the continuing legal education society of british columbia, july 2015. Excluded property pursuant to the family law act where property is put into joint names family law, victoria, bc october 9, 2015 family law act, property there have now been four decisions of the bc supreme court which have looked at the questions regarding whether or not a spouse loses their right to excluded property if they place that. These laws are the federal divorce act and the provincial family law act.
The family law act puts the safety and best interests of the child first when families decide not to live together anymore. The proof is in the puddin, the person who claims property is excluded has to show that it is excluded. On the other hand, the fla redefines the boundaries of family assets so that certain property, called excluded property, is no longer divided up. What spouses own at the date of separation is broadly defined as family property. The new family law act fla introduces new and changed language. In ontario, the family law act excludes certain property from the net family property calculation. Whenever new legislation is enacted, it is anticipated the courts will provide guidance on how the new legislative provisions are to be interpreted as.
Dividing property and debts after you separate family. Each court has its own rules, its own forms, and its own process. Excluded property in bc family law everything you need. Property under the family law act jenkins marzban logan llp. The family law act takes an entirely different approach to property and debt than the former. Property division for arried and nmarried couples booklet. Suite 400 510 burrard street vancouver, bc v6c 3a8 tel. Tracing excluded property ontario family law lawyer.