Can You Leave the Family Home Without Losing Rights in BC?

Many people stay in a painful situation because they are afraid that if they move out, they will lose their share of the home or their time with the children. Others have already left and are now worried about what they have given up.

This article explains, in general terms, what moving out does and does not change in British Columbia. Every family is different, so use it as a starting point and speak to a lawyer about your own circumstances.

This article covers the law of British Columbia.

Your share of the home

On separation, spouses each have a right to an undivided half interest in all family property as a tenant in common, subject to any agreement or order. Spouses are both entitled to family property and responsible for family debt. Nothing in that rule says that a spouse who physically leaves loses the interest.

There are exceptions to equal sharing. The Supreme Court can order an unequal division if equal division would be significantly unfair, looking at factors such as the length of the relationship and contributions to the other spouse's career. Spouses can also agree to a different split. How a court would weigh these in your situation depends on the facts, so it is worth confirming with a lawyer.

Separation and moving out

There is no legal separation in BC. If a couple in a marriage or marriage-like relationship stops living together, they are separated. Spouses can also be separated while living in the same residence, and a court may consider evidence such as one spouse communicating an intention to separate permanently. Under one roof, BC government guidance says a clear intention of permanent separation must have been communicated and acted upon.

If you later try to reconcile, a special rule applies to property division. Spouses are not considered to have separated if, within one year after separation, they live together again with the primary purpose of reconciling and do so for periods totalling at least 90 days. If the total is less than 90 days, or the main purpose was not to reconcile, the original separation date stands for property division.

Your time and role with the children

Each parent who lived with the child is the child's guardian, including after the parents separate, and moving out does not itself end guardianship. Only a guardian may have parental responsibilities and parenting time. A parent who has never lived with the child is not a guardian unless they meet listed exceptions, such as regularly caring for the child.

When parents make agreements or the court makes orders about children, the parties and the court must consider the best interests of the child only, and all of the child's needs and circumstances must be considered. In practice, where the children are living and who has been caring for them can be part of those circumstances, so think about how a move out will work for the children day to day.

If a written agreement or order is in place, a guardian who plans to relocate must give at least 60 days' written notice, where the move can significantly affect the child's relationship with another guardian.

What can affect your rights after you leave

• Signing an agreement. A property agreement can be set aside in some cases, such as non-disclosure of significant property or debt, but you should not count on that. BC guidance says it is very important to speak to a lawyer before signing a document that settles matters with a spouse.
• Debts. Family debt includes obligations incurred from the start of the relationship until separation, and debts after separation count only if incurred to maintain family property.
• Deadlines. Under the Family Law Act, property, pension and spousal support claims must generally be started within 2 years; for married spouses this runs from the divorce judgment, and for unmarried spouses from the date they separated. A married person claiming spousal support under the federal Divorce Act has no time limit.
• Property being sold. The court can restrain a spouse from disposing of property at issue unless they establish a claim will not be defeated.

If you leave and the other spouse stays, a court can also make a temporary exclusive occupation order, which does not transfer ownership.

What to do next

• Put your safety and the children's wellbeing first.
• Photograph or copy documents about the home, accounts and debts before you go, if you can do so safely.
• Keep paying or arranging for essential costs of the home where you can, and keep records, because debts incurred to maintain family property can count.
• Write down the date you left and the date you told your spouse you were separating.
• Do not sign an agreement about the home or the children until you have had legal advice.
• Ask a lawyer about a parenting plan before you move.

Frequently asked questions