Can Family Property Be Used to Pay Legal Fees Before Division in BC?

Separation is expensive, and many people find that most of their money is tied up in a home, savings or a business that has not yet been divided. You may wonder whether you can draw on that shared property now to pay a lawyer or a mediator, instead of waiting until the final division.

British Columbia's Family Law Act deals with legal fees in a more limited way than many people expect, because Part 10 has no general costs provision and only a few narrower expense provisions. This article explains what it allows, what it does not, and what other options exist if you cannot afford a lawyer.

This article covers the law of British Columbia.

What section 89 of the Family Law Act allows

Section 89 lets the Supreme Court order an interim distribution of family property that is at issue under Part 5 of the Act. Interim simply means early, before the final division of property is decided.

The money can be used for one of three purposes: to fund family dispute resolution, to fund all or part of a proceeding under the Act, or to obtain information or evidence in support of family dispute resolution or a court application.

Before making the order, the court must be satisfied that it would not be harmful to the interests of a spouse and that it is necessary for one of those listed purposes.

The limits you need to know about

• Only the Supreme Court can make the order.
• It can come only from family property at issue under Part 5, which is the part dealing with property division.
• It can be made only if it would not harm the other spouse's interests.
• It is not a general costs order.

In practice, this means the section is not a way to have the other person pay your legal bills as a penalty or as a matter of course. It is a way to release part of the shared property you are already arguing over, for a specific purpose. Whether a request is realistic depends on the facts, so a lawyer can help you judge it.

Interim distribution compared with asking a spouse to pay your fees

These are different ideas. An interim distribution under section 89 moves money out of family property that is being divided. It is not an order that the other spouse pay your fees from their own funds.

Part 10 of the Family Law Act has no general costs provision. Instead, it has narrower expense rules, set out below.

Part 10 of the Family Law Act does list some narrower expense provisions, such as s. 203(2) on children's lawyer fees, s. 211(5) on assessment report fees, s. 212(2) on the expenses of complying with disclosure orders, and s. 224(2) on fees for dispute resolution, counselling or programs. Whether any of them could apply to you depends on your circumstances, so it is worth raising with a lawyer.

Other ways to get help if money is tight

Unbundling means a lawyer provides legal services for part of your legal matter, with you and the lawyer deciding which tasks each of you will do. For example, you might hire a lawyer only for advice or a single step. The Law Society of BC developed a Family Unbundled Legal Services toolkit with Mediate BC, including sample retainer agreements, available through Courthouse Libraries BC.

Family Justice Centres offer free services to parents and other family members dealing with separation or divorce. These include help with parenting arrangements, guardianship, child and spousal support, contact with a child, and property division for a companion animal. They also provide a needs assessment, legal information with referrals for advice, and a free Parenting After Separation course.

Family Justice Counsellors are accredited mediators who provide mediation. Some referred services are based on financial need, so you may be asked about income. Whether you can get lawyer advice at a Family Justice Centre depends on your situation, and staff otherwise refer you elsewhere.

What to do next

• List the property you and your spouse own and which items are in dispute.
• Write down what you need money for: dispute resolution, a court proceeding, or gathering information or evidence.
• Consider whether you only need a lawyer for part of the matter, and look up the unbundling toolkit through Courthouse Libraries BC.
• Contact a Family Justice Centre at 1-844-747-3963, Monday to Friday, 8:30 AM to 4:30 PM.
• Speak with a lawyer about whether an application under section 89 suits your situation.

Because an application is made to the Supreme Court and depends on your property and your spouse's interests, getting legal advice before you apply is wise.

Frequently asked questions