The family law act takes an entirely different approach to property and debt than the former. The new act has completely replaced the existing family relations act. There are two main laws that apply to family law problems in bc. In addition, the new fla has changed the game when it comes to interests in discretionary family trusts. There are two courts that handle almost all family law litigation in british columbia, canada. However, most of the act will not come into effect until march 18, 20. There are some substantive changes in the law that have come with the new act if you are going through a separation or divorce or even considering. The difference between the two classes is that on the breakdown of a relationship the parties are. Family law act section notes part 5 property government of b. Family property is divided equally at the end of the relationship. Under the family law act, excluded property is protected from division and remains the property of one spouse. Family property excluded property family debts these are the assets that either spouse got during the relationship. Protecting gifts and inheritances in family law toronto. In ontario, the family law act excludes certain property from the net family property calculation.
Bcs family law act provides a set of rules for dividing property of separating couples who are married or who have lived with each other in a marriagelike relationship for a continuous period of at least 2 years when couples make marriage and cohabitation agreements, they are contracting out of this default scheme for dividing property a lot, or a little, depending on the individual. Excluded property in bc means property you bring in to your relationship or marriage. Here are a couple of examples of what might happen. The family law in bc quick reference tool by the legal services society also provides answers to frequently asked questions about the family law act, including information about what happens if you were separating or separated before the act took effect. Santerre of jenkins marzban logan llp, vancouver, bc, for the continuing legal education society of british columbia, july 2015. Excluded property is the property each spouse has on the date they began to live. These laws are the federal divorce act and the provincial family law act. Family property now includes all property owned by one or both spouses at the date of separation unless the asset is excluded, in which case only the increase in the value of the asset during the relationship is divisible. Excluded property in british columbia family law baker. As well, the excluded property division model is a better.
This change effected a new property right regime for separating spouses. Net family property is the value of each spouses property, after deducting debts and liabilities at the time of separation, and then deducting the value of assets brought into the marriage other than the matrimonial home. However, it seems to have at times confused and created a colourful selection of cases, with judges grappling with how to bring fairness to each case while being in compliance with our relatively new legislation. Property under the family law act jenkins marzban logan llp. How to prove property is excluded under the bc family law act.
Valuing family property and family debt family law act. Guide to the new bc family law act 1 introduction on november 24, 2011, the new family law act fla became law. The family law act also reformed the division of property, listing the types of property that are excluded from family property and generally will not be divided up after the parties separate. Division of excluded property the court may divide excluded property if it cannot divide family property located outside province or if it would be significantly unfair not to divide excluded property s. When the family law act came into force it introduced an excluded property regime to british columbia s family law. Family property is shared equally between spouses unless you agree otherwise. The new family law act fla introduces new and changed language. The family law act, sbc 2011, c 25 is a law created by the government of british columbia that you can find, along with other provincial laws, at the website of the queens printer or on canlii, a free website that lets you search canadian laws and court decisions.
A very brief introduction to the family law act pdf. Excluded property could become family property if one spouse. When the family law act fla, came into force on march 18, 20, it introduced a notable change the concept of excluded family property in bc. The family law act is the main law on family breakdown in british columbia. The proof is in the puddin, the person who claims property is excluded has to show that it is excluded. Excluded property in bc family law everything you need. The family law act takes an entirely different approach to property and debt than. Agreements respecting family law disputes generally. The value of each spouses net family property will be calculated. Encourages families to resolve their disputes outofcourt. The new fla property division rules state that on separation each spouse has a right to an undivided half interest in all family property with the exception of excluded property.
Family property also includes any increase in the value of excluded property that happens during the relationship. On january 1, 2020, albertas matrimonial property act became the family. On the other hand, the fla redefines the boundaries of family assets so that certain property, called excluded property, is no longer divided up. What spouses own at the date of separation is broadly defined as family property. Property held by discretionary trusts and the family law act. Dividing property and debts after you separate family. The court may divide excluded property if it cannot divide family property.
If they end up separating, the bc family law act provides for excluded assets, which includes that the value of the assets each spouse had. Property held by discretionary trusts is excluded property paragraph 851f provides that. Excluded property in british columbia family law baker newby. Each court has its own rules, its own forms, and its own process. Excluded property is presumed to remain the property of the spouse who owns it. The family law act puts the safety and best interests of the child first when families decide not to live together anymore. If you separated from your spouse or partner on or after january 1, 2020, read this insert before reading the rest of the booklet. The law surrounding property division is found in the family law act.
A family law lawyer will be hired to serve as a resource for the court, and to support the development of jurisprudence under the family law act and various initiatives for improving access to justice. Excluded property is listed in s 852 of the family law act and includes. Inheritance, gifts and excluded property and property. Excluded property pursuant to the family law act where property is put into joint names family law, victoria, bc october 9, 2015 family law act, property there have now been four decisions of the bc supreme court which have looked at the questions regarding whether or not a spouse loses their right to excluded property if they place that. Gifts, inheritances and other excluded property free. Since the introduction of the bc family law act, the court has struggled with how a spouse may prove property is excluded.
Under british columbia s family law act, the rule of thumb is that all family property will be divided equally between spouses when they separate. Each law deals with different issues, although they share a lot of issues in common. However, there are certain exceptions to this general rule. The property division scheme under the family law act applies to married spouses and unmarried spouses who are cohabiting in a marriagelike relationship for at least two years sections 3 and 81 spouses in either of these two categories may apply to court for a. Heated debates by lawyers ensued and so did litigation. Section 85 1 of the family law act provides what is excluded family property section 85 2 of the family law act provides that a spouse claiming that property is excluded property is responsible for demonstrating that the property is excluded property. Excluded property divorce, separation and family law victoria, bc october 14, 2016 family law act, property the new family law act in b. When the family law act introduced the concept of excluded property back in 20, it became the hottest topic in the legal town. Excluded property pursuant to the family law act where. The introduction of the family law act and its regime on what is called excluded property was thought to bring more clarity, efficiency and fairness to family law litigation in b. Shih, 2015 bcsc 2108 canlii provides guidance as to the type of evidence one must provide to the court in. The parts of the family law act that talk about the division of property and debt. Under the family law act fla, property owned by the spouses at the time of separation is categorized as either family property or excluded property. Shih, 2017 bcca 37, the court gives some more guidelines on what they.
How the new family law act could affect your family trust. Whenever new legislation is enacted, it is anticipated the courts will provide guidance on how the new legislative provisions are to be interpreted as. Excluded property in a divorce victoria family law. The family law act of british columbia is the provincial legislation that governs the division of property in british columbia. The case law has, therefore, had to deal with a variety of scenarios where the gift or inheritance is either comingled with other assets andor converted to other property. A handy, downloadable pdf of the law is also available online through a service called quickscribe. In the spring of 20 the family law act came into effect in bc replacing the family relations act, seen by many as an outdated and inadequate piece of legislation.
A law, in this sense of the word, means a rule made by the government. Suite 400 510 burrard street vancouver, bc v6c 3a8 tel. The family law act moves to an excluded property model that involves less judicial discretion, particularly at the initial stage of identifying which assets are. In ontario, the family law act 1990 the act excludes certain property from the net family property calculation. Family property includes, in principle, all assets acquired by either partner during the relationship, apart from the excluded property listed above. Under section 85 of the family law act, any property acquired prior to cohabitation and brought into the relationship is excluded from the division.
Also, if during your marriage you receive a gift, inheritance or a personal injury settlement, those all belong to you and are not subject to 5050 division upon separation, unless you gift them to. Excluded property includes, in principle, every asset owned by a partner at the beginning of a relationship, as well as any inheritances, personal gifts, and certain court awards, settlements and insurance payments received during the relationship. In family law, the property married spouses and unmarried spouses share is. The new family law act received royal assent on november 24, 2011 and came into force march 18, 20. When the family law act came into force in 2014, it introduced an excluded property regime to british columbia s family law. Excluded family property in bc family law nasser allan llp. Here are definitions of some of the most common new terms and changes to old terms that will be used under the new act.
Though some changes are only minor updates to the current. Property division for arried and nmarried couples booklet. Pursuant to the legislation, there are several categories of excluded property. The new family law act reforms property division so that certain property, such as prerelationship property and inheritances generally will not be divided up. Excluded property under the family law act rp lawyers. If you separated from your spouse or partner on or. Section 4 of the family law act also describes excluded property, which, although owned on the valuation date, is excluded from a parties net family property. Under the bc family law act there is a provision that allows for excluded property. There are obvious exceptions to this rule, which will be covered in a future blog, but that does beg the question was is family property. The bc family law act and your assets blueshore financial. Excluded property in bc family law everything you need to know.
The family law act came into force on march 18, 20. Tracing excluded property ontario family law lawyer. You may lose your excluded property under the bc family. The new act overhauls the bc family law system and brings with it many changes. Dividing property and allocating debt under british columbias. Specifically, section 85 of the family law act established two categories of property at separation of married or unmarried spouses. The parties were married for almost 10 years in a traditional marriage.
1323 298 762 334 192 783 1131 724 1390 311 549 332 211 1223 1358 625 210 1133 1309 1461 1026 670 618 925 25 1439 216 1394 379 1420 791 308 833 1295 896