How Is Property Divided in a Divorce in British Columbia?

When a relationship ends, one of the first worries is what happens to the home, the savings, the pensions and the debts. In British Columbia, the Family Law Act sets out a defined process for this, so you are not left guessing how assets will be sorted.

This article walks through that process in the order it usually happens. It is general information, not advice about your own situation, and the details of your assets can change the outcome.

This article covers the law of British Columbia.

The starting point: equal sharing

Unless an agreement or order says otherwise, spouses are equally entitled to family property and equally responsible for family debt. On separation, each spouse holds an undivided half interest in family property as a tenant in common.

These rules apply to spouses. A person is a spouse if they are 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, on its own, make an unmarried couple spouses for property and pension division.

The process, step by step

• Identify what each spouse owns at separation, and sort it into family property and excluded property.
• Identify the family debt.
• Value the property at fair market value.
• Divide equally, unless an agreement or a significant-unfairness order under section 95 applies.

The court makes a division order only when a spouse applies for one. Many couples never reach that point because they settle the division by agreement.

What goes into the pool and what stays out

Family property is everything the spouses own separately or together on the date of separation, and it does not matter whose name it is in. The family home, RRSPs, investments, bank accounts and pensions are examples. Business interests, income tax refunds and money in a financial institution account are also included.

Excluded property generally includes property acquired before the relationship began, inheritances, gifts from a third party, most settlements or damages for injury or loss, and certain insurance proceeds. The spouse claiming that property is excluded is responsible for demonstrating it. Even then, the increase in value of excluded property since the later of the start of the relationship or its acquisition is family property and is shared.

Family debt is generally what was incurred from the start of the relationship to separation, and after separation only if incurred to maintain family property. A division between spouses does not bind a lender, so a debt in one spouse's name remains owed to the creditor by that spouse.

Which date matters: ownership and value

Ownership is fixed as at separation, but value is measured later. Unless an agreement or order says otherwise, family property is valued at fair market value as of the date of the dividing agreement or the date of the court hearing, not the separation date. Pensions are an exception, because their valuation falls under Part 6.

Separation itself can be a question. Spouses can be separated while living in the same residence, and the court can consider a communicated intention to separate permanently as evidence. Spouses are not treated as separated if they reconcile within one year and live together for at least 90 days in total.

If the court does divide property, it can declare ownership, order a transfer, order compensation, order a sale, order security or order debt indemnities, which is how a buyout or a sale of the family home is ordered.

When the equal split can change

Time limits and what to do next

A proceeding to divide property, divide a pension or claim spousal support must be started no later than 2 years after a divorce judgment is made, for married spouses, or after the date of separation, for spouses in a marriage-like relationship. That time limit is suspended while the parties are in family dispute resolution with a professional or a prescribed process.

• Write down your separation date and the date the relationship began.
• List every asset and debt, noting whose name it is in and when it was acquired.
• Gather proof for anything you say is excluded property, such as an inheritance or something owned before the relationship.
• Collect tax returns, notices of assessment, earnings statements and property assessment notices, which are the income documents attached to a Form F8 financial statement.
• Speak with a lawyer before signing any agreement or letting a deadline pass.

If you start a Supreme Court case, the Form F8 and income documents must be filed at least 7 days before a judicial case conference, and an older statement may need updating. Confirm the current rules and your own deadlines with a lawyer.

Frequently asked questions