Are Pensions Divided on Separation in British Columbia?

If you or your spouse has a workplace or government pension, you may worry about losing years of savings or, on the other side, wonder whether you have a claim to your spouse's plan. Pensions can be complicated because they pay out far in the future.

This article explains in plain terms how British Columbia's Family Law Act treats pensions on separation, the usual ways they are divided, and the timing rules. Your plan's own rules matter, so treat this as a starting point.

This article covers the law of British Columbia.

A pension is family property, but only part of it

Family property includes a spouse's entitlement under an annuity, pension, retirement savings or income plan. It does not matter whose name it is in.

Pension interests that are family property are divided under Part 6 of the Family Law Act unless an agreement or order provides otherwise. Only the portion that is family property, meaning the part earned during the relationship, is shared.

A pension earned before the relationship began is not shared in that way, because property acquired before the relationship is excluded property. Whether and how a particular plan splits into those parts depends on the plan, which is one reason to get the plan's information early.

Valuation is also different. Family property is generally valued at fair market value as of the agreement or hearing date, but pension valuation under Part 6 is an exception to that rule.

Who counts as a spouse for pension division

A person is a spouse if married, or if they have lived in a marriage-like relationship for a continuous period of at least 2 years, and a spouse includes a former spouse. Having a child together does not make a couple spouses for property and pension division without the 2-year period.

How a pension can be divided

The method depends on the type of plan and whether the member has started to receive the pension:

A spouse can be designated a limited member of the pension plan. Commuted value is determined under the Pension Benefits Standards Act. Part 6 also deals with disability benefits, supplemental plans, extraprovincial plans, and survivor benefits and death of a member or limited member.

How the plan gets involved

The plan administrator acts only after receiving a copy of the agreement or order and the required notice. The member does not need the spouse's consent or waiver to proceed.

Spouses can also agree in writing on how to deal with the pension, including changing what is included or valued. A written, witnessed agreement cannot be overridden by a court unless it is set aside under s. 93, on grounds such as non-disclosure or one spouse not understanding the agreement. That makes full disclosure of pension details important.

If a spouse fails to give full information, the court may draw an adverse inference, order payment of expenses, or make other orders.

What to do next

• Ask the plan administrator for a pension statement showing the type of plan, start date of membership and the benefits earned.
• Find the date the relationship began and the date of separation, since they affect which part is family property.
• Collect statements for any RRSPs, LIRAs or LIFs, which can also be family property or transferable.
• Prepare your financial statement. In Supreme Court, Form F8 is required for property or pension division claims under Parts 5 or 6.
• Note the time limit: the claim generally must be started no later than 2 years after a divorce judgment for married spouses, or after separation for spouses in a marriage-like relationship.
• Get legal advice, and consider an actuary or accountant if the plan is a benefit-formula plan.

The time limit is suspended while the persons are in family dispute resolution with a professional or a prescribed process.

Frequently asked questions