Your Legal Rights When You Separate in British Columbia

Separating raises a lot of questions at once. Who keeps the house? Who owes what? What happens with the children, and is anyone entitled to support? The answers depend on your facts, but British Columbia has a clear framework that most separating couples fall under.

This page gives a general picture of your rights under the Family Law Act and, for married couples, the federal Divorce Act. It is not a substitute for advice on your own situation, but it should help you understand what to ask and what to do first.

This article covers the law of British Columbia.

Who these rules apply to

Under the Family Law Act, you are a spouse if you are married, or if you have lived with another person in a marriage-like relationship for a continuous period of at least 2 years. The Act applies to married and unmarried spouses for property, debt, support and children.

There is one exception. Outside property and pension division, an unmarried person who has lived in a marriage-like relationship and has a child with the other person is a spouse even without 2 years together. That means the child rule can matter for spousal support, but not for dividing property or debt.

You also do not need to take a legal step to separate. There is no such thing as a legal separation: if a couple in a marriage or marriage-like relationship stops living together, they are separated. Spouses can also be separated while still living in the same residence, for example where one has clearly communicated an intention to separate permanently and that has been acted upon.

Property and debt

Spouses are both entitled to family property and responsible for family debt. On separation, each spouse has a right to an undivided half interest in all family property as a tenant in common, subject to any agreement or order.

Equal is the starting point, not a guarantee. The Supreme Court can order an unequal division if an equal one would be significantly unfair, and spouses can also choose a different split by agreement.

The family home and protecting assets

The Supreme Court can make a temporary order giving one spouse exclusive occupation of the family residence for a specified period, including to the exclusion of the other spouse. That order does not transfer ownership or any proprietary interest.

If you worry that property may be sold or hidden, the Supreme Court must make an order restraining a spouse from disposing of property at issue unless that spouse establishes that the other's claim will not be defeated. These orders can be made before the other spouse is served with notice.

Property division is decided in the Supreme Court, not the Provincial Court, apart from companion animals.

Children and support

• Each parent who lived with the child is the child's guardian, including after separation, and moving out does not itself end guardianship.
• A parent who has never resided with the child is not a guardian unless they meet listed exceptions, such as regularly caring for the child.
• In parenting agreements and orders, the parties and the court must consider only the best interests of the child.
• Each parent and guardian has a duty to provide support for a child.
• Spousal support is not automatic; unlike child support, it is not a right in every case.
• If a written agreement or order is in place, a guardian planning to relocate must give at least 60 days' written notice where the move can significantly affect the child's relationship with another guardian.

Time limits and agreements

Under the Family Law Act, claims for property or debt division, pension division or spousal support generally must be started within 2 years. That 2-year limit does not apply to spousal support reviews under sections 168 or 169, and the time stops running during family dispute resolution or a prescribed process. There is an exception for married people: a married person claiming spousal support under the federal Divorce Act has no time limit. For married spouses, the Family Law Act period runs from the divorce judgment; for unmarried spouses in a marriage-like relationship, it runs from the date they separated. Child support and parenting claims are not subject to that limit.

A separation agreement does not have to be filed with a court to be binding. A written support or parenting agreement that is filed in court can be enforced like an order. Courts can still set agreements aside in some situations, such as non-disclosure of significant property or debts, or if a parenting agreement is not in the child's best interests.

You do not need a lawyer to make an agreement, but it is very important to speak to one before signing a document that settles matters with a spouse.

What to do next

• Write down the date you and your spouse separated and how it was communicated.
• Gather records of property, debts, bank accounts, pensions and the home.
• Keep track of what you owned before the relationship, and any inheritances or gifts.
• Note any deadlines, especially the 2-year limit for property and spousal support claims.
• Think about getting independent legal advice before you sign a settlement, which BC government guidance recommends before settling parenting, support or property.

Frequently asked questions