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Family Law Act

[SBC 2011] CHAPTER 25

Part 5 — Property Division

Division 1 — General Rules

Equal entitlement and responsibility

81  Subject to an agreement or order that provides otherwise and except as set out in this Part and Part 6 [Pension Division],

(a) spouses are both entitled to family property and responsible for family debt, regardless of their respective use or contribution, and

(b) on separation, each spouse has a right to an undivided half interest in all family property as a tenant in common, and is equally responsible for family debt.

Rights and remedies of third parties

82  Nothing in this Part affects the rights and remedies of a spouse's creditors, guarantors or assignees in relation to family debt.

Division 2 — Determining Family Property and Family Debt

Interpretation

83  (1) For the purposes of this Part, spouses are not considered to have separated if, within one year after separation,

(a) they begin to live together again and the primary purpose for doing so is to reconcile, and

(b) they continue to live together for one or more periods, totalling at least 90 days.

(2) Nothing in this Part affects a division of property under an agreement or order in a circumstance where, after the agreement or order was made, spouses live together and then separate again.

(3) For the purposes of this Part, property received by a spouse from a trust in respect of the spouse's beneficial interest in property held in the trust must be considered to be property derived from that beneficial interest.

(4) In this Part, "property" includes a beneficial interest in property unless a contrary intention appears.

Family property

84  (1) Subject to section 85 [excluded property], family property is all real property and personal property as follows:

(a) on the date the spouses separate,

(i) property that is owned by at least one spouse, or

(ii) a beneficial interest of at least one spouse in property;

(b) after separation,

(i) property acquired by at least one spouse if the property is derived from property referred to in paragraph (a) (i) or from a beneficial interest referred to in paragraph (a) (ii), or from the disposition of either, or

(ii) a beneficial interest acquired by at least one spouse in property if the beneficial interest is derived from property referred to in paragraph (a) (i) or from a beneficial interest referred to in paragraph (a) (ii), or from the disposition of either.

(2) Without limiting subsection (1), family property includes the following:

(a) a share or an interest in a corporation;

(b) an interest in a partnership, an association, an organization, a business or a venture;

(c) property owing to a spouse

(i) as a refund, including an income tax refund, or

(ii) in return for the provision of a good or service;

(d) money of a spouse in an account with a financial institution;

(e) a spouse's entitlement under an annuity, a pension plan, a retirement savings plan or an income plan;

(f) property, other than property to which subsection (3) applies, that a spouse disposes of after the relationship between the spouses began, but over which the spouse retains authority, to be exercised alone or with another person, to require its return or to direct its use or further disposition in any way;

(g) the amount by which the value of excluded property has increased since the later of the date

(i) the relationship between the spouses began, or

(ii) the excluded property was acquired.

(2.1) For the purposes of subsection (2) (g), any increase in value of a beneficial interest in property held in a discretionary trust does not include the value of any property received from the trust.

(3) Despite subsection (1) of this section and subject to section 85 (1) (e), family property includes that part of trust property contributed by a spouse to a trust in which

(a) the spouse is a beneficiary, and has a vested interest in that part of the trust property that is not subject to divestment,

(b) the spouse has a power to transfer to himself or herself that part of the trust property, or

(c) the spouse has a power to terminate the trust and, on termination, that part of the trust property reverts to the spouse.

Excluded property

85  (1) The following is excluded from family property:

(a) property acquired by a spouse before the relationship between the spouses began;

(b) inheritances to a spouse;

(b.1) gifts to a spouse from a third party;

(c) a settlement or an award of damages to a spouse as compensation for injury or loss, unless the settlement or award represents compensation for

(i) loss to both spouses, or

(ii) lost income of a spouse;

(d) money paid or payable under an insurance policy, other than a policy respecting property, except any portion that represents compensation for

(i) loss to both spouses, or

(ii) lost income of a spouse;

(e) property referred to in any of paragraphs (a) to (d) that is held in trust for the benefit of a spouse;

(f) a spouse's beneficial interest in property held in a discretionary trust

(i) to which the spouse did not contribute, and

(ii) that is settled by a person other than the spouse;

(g) property derived from property or the disposition of property referred to in any of paragraphs (a) to (f).

(2) A spouse claiming that property is excluded property is responsible for demonstrating that the property is excluded property.

Family debt

86  Family debt includes all financial obligations incurred by a spouse

(a) during the period beginning when the relationship between the spouses begins and ending when the spouses separate, and

(b) after the date of separation, if incurred for the purpose of maintaining family property.

Valuing family property and family debt

87  Unless an agreement or order provides otherwise and except in relation to a division of family property under Part 6,

(a) the value of family property must be based on its fair market value, and

(b) the value of family property and family debt must be determined as of the date

(i) an agreement dividing the family property and family debt is made, or

(ii) of the hearing before the court respecting the division of property and family debt.

Division 3 — Before Agreement or Final Order is Made

Orders under this Division

88  A spouse may make an application to the Supreme Court under this Division at any time before a final agreement or final order is made in relation to a family law dispute respecting property division.

Orders for interim distribution of property

89  If satisfied that it would not be harmful to the interests of a spouse and is necessary for a purpose listed below, the Supreme Court may make an order for an interim distribution of family property that is at issue under this Part to provide money to fund

(a) family dispute resolution,

(b) all or part of a proceeding under this Act, or

(c) the obtaining of information or evidence in support of family dispute resolution or an application to a court.

Temporary orders respecting family residence

90  (1) For the purposes of this section, "family residence" means a residence that is

(a) owned or leased by one spouse or both, and

(b) the ordinary place of residence of the spouses.

(2) The Supreme Court may make an order granting a spouse, for a specified period of time,

(a) exclusive occupation of a family residence, or

(b) possession or use of specified personal property stored at the family residence, including to the exclusion of the other spouse.

(3) An order under this section does not

(a) authorize a spouse to materially alter the substance of the family residence or personal property,

(b) grant to a spouse a proprietary interest in the family residence or personal property, or

(c) subject to subsection (4), grant to a spouse any right that continues after the rights of the other spouse, or of both spouses, as owner or lessee are terminated.

(4) If an order has been made under subsection (2), the Supreme Court may

(a) order that the right of a spouse to apply for partition and sale of, or to sell or otherwise dispose of or encumber, the family residence or personal property

(i) be postponed, and

(ii) is subject to the order made under subsection (2), and

(b) change the order made under subsection (2).

(5) Nothing in this section prevents the filing of an entry under the Land (Spouse Protection) Act .

Temporary orders respecting protection of property

91  (1) On application by a spouse, the Supreme Court must make an order restraining the other spouse from disposing of any property at issue under this Part or Part 6 [Pension Division] until or unless the other spouse establishes that a claim made under this Part or Part 6 will not be defeated or adversely affected by the disposal of the property.

(2) The Supreme Court may make one or more of the following orders:

(a) for the possession, delivery, safekeeping and preservation of property;

(b) for the purpose of protecting the applicant's interest in property from being defeated or adversely affected,

(i) prohibiting the other spouse from disposing of, transferring, converting, or exchanging into another form, property in which the applicant may have an interest, or

(ii) vesting all or a portion of property in, or in trust for, the applicant.

(3) The Supreme Court may make an order under this section before notice of the application is served on the other spouse, or may order that notice of the application be served on the other spouse.

(4) Despite section 215 (2) [changing, suspending or terminating orders generally], the Supreme Court may change, suspend or terminate an order made under this section.

Division 4 — Dividing Family Property and Family Debt

Agreements respecting property division

92  Despite any provision of this Part but subject to section 93 [setting aside agreements respecting property division], spouses may make agreements respecting the division of property and debt, including agreements to do one or more of the following:

(a) divide family property or family debt, or both, and do so equally or unequally;

(b) include as family property or family debt items of property or debt that would not otherwise be included;

(c) exclude as family property or family debt items of property or debt that would otherwise be included;

(d) value family property or family debt differently than it would be valued under section 87 [valuing family property and family debt].

Setting aside agreements respecting property division

93  (1) This section applies if spouses have a written agreement respecting division of property and debt, with the signature of each spouse witnessed by at least one other person.

(2) For the purposes of subsection (1), the same person may witness each signature.

(3) On application by a spouse, the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement described in subsection (1) only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:

(a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement;

(b) a spouse took improper advantage of the other spouse's vulnerability, including the other spouse's ignorance, need or distress;

(c) a spouse did not understand the nature or consequences of the agreement;

(d) other circumstances that would, under the common law, cause all or part of a contract to be voidable.

(4) The Supreme Court may decline to act under subsection (3) if, on consideration of all of the evidence, the Supreme Court would not replace the agreement with an order that is substantially different from the terms set out in the agreement.

(5) Despite subsection (3), the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement if satisfied that none of the circumstances described in that subsection existed when the parties entered into the agreement but that the agreement is significantly unfair on consideration of the following:

(a) the length of time that has passed since the agreement was made;

(b) the intention of the spouses, in making the agreement, to achieve certainty;

(c) the degree to which the spouses relied on the terms of the agreement.

(6) Despite subsection (1), the Supreme Court may apply this section to an unwitnessed written agreement if the court is satisfied it would be appropriate to do so in all of the circumstances.

Orders respecting property division

94  (1) The Supreme Court may make an order under this Division on application by a spouse.

(2) The Supreme Court may not make an order respecting the division of property and family debt that is the subject of an agreement described in section 93 (1) [setting aside agreements respecting property division], unless all or part of the agreement is set aside under that section.

Unequal division by order

95  (1) The Supreme Court may order an unequal division of family property or family debt, or both, if it would be significantly unfair to

(a) equally divide family property or family debt, or both, or

(b) divide family property as required under Part 6 [Pension Division].

(2) For the purposes of subsection (1), the Supreme Court may consider one or more of the following:

(a) the duration of the relationship between the spouses;

(b) the terms of any agreement between the spouses, other than an agreement described in section 93 (1) [setting aside agreements respecting property division];

(c) a spouse's contribution to the career or career potential of the other spouse;

(d) whether family debt was incurred in the normal course of the relationship between the spouses;

(e) if the amount of family debt exceeds the value of family property, the ability of each spouse to pay a share of the family debt;

(f) whether a spouse, after the date of separation, caused a significant decrease or increase in the value of family property or family debt beyond market trends;

(g) the fact that a spouse, other than a spouse acting in good faith,

(i) substantially reduced the value of family property, or

(ii) disposed of, transferred or converted property that is or would have been family property, or exchanged property that is or would have been family property into another form, causing the other spouse's interest in the property or family property to be defeated or adversely affected;

(h) a tax liability that may be incurred by a spouse as a result of a transfer or sale of property or as a result of an order;

(i) any other factor, other than the consideration referred to in subsection (3), that may lead to significant unfairness.

(3) The Supreme Court may consider also the extent to which the financial means and earning capacity of a spouse have been affected by the responsibilities and other circumstances of the relationship between the spouses if, on making a determination respecting spousal support, the objectives of spousal support under section 161 [objectives of spousal support] have not been met.

Division of excluded property

96  The Supreme Court must not order a division of excluded property unless

(a) family property or family debt located outside British Columbia cannot practically be divided, or

(b) it would be significantly unfair not to divide excluded property on consideration of

(i) the duration of the relationship between the spouses, and

(ii) a spouse's direct contribution to the preservation, maintenance, improvement, operation or management of excluded property.

Giving effect to property division

97  (1) For the purposes of giving effect to a division of property or family debt under this Part or Part 6 [Pension Division], the Supreme Court may

(a) determine any matter respecting the ownership, right of possession, or division of the property or family debt, and

(b) despite sections 94 (2) [orders respecting property division] and 215 (2) [changing, suspending or terminating orders generally], and subject to subsection (3) of this section, make any order that is necessary, reasonable or ancillary to give effect to the division.

(2) Without limiting subsection (1), the Supreme Court may make an order to do one or more of the following:

(a) declare who has ownership of, or right of possession to, property;

(b) require that title to a specified property granted to a spouse be transferred to, held in trust for, or vested in the spouse, absolutely, for life or for a term of years;

(c) require a spouse to pay compensation to the other spouse if property has been disposed of, transferred, converted, or exchanged into another form, or for the purpose of dividing the property;

(d) require partition or sale of property and payment to be made out of the proceeds of sale to one spouse or both in specified proportions or amounts;

(e) require property forming all or a part of the share of either or both spouses to be transferred to, held in trust for, or vested in a child;

(f) require a spouse to give security, in any form the court directs, for the performance of an obligation imposed by an order under this section, including a charge on property;

(g) require a spouse to waive or release in writing any right, benefit or protection given by section 23 of the Chattel Mortgage Act, R.S.B.C. 1979, c. 48, section 19 of the Sale of Goods on Condition Act, R.S.B.C. 1979, c. 373, or section 58 or 67 of the Personal Property Security Act ;

(h) subject to subsection (3), declare that one spouse is responsible for payment of an item of family debt and must indemnify the other spouse for the item of family debt;

(i) require the sale of property for the purposes of paying an item of family debt;

(j) transfer property to a spouse.

(3) An order in relation to family debt applies only as between the spouses and does not affect an agreement between a spouse and any other person.

(4) Nothing in this section permits the Supreme Court to divide excluded property unless permitted under section 96 [division of excluded property].

Division 5 — Enforcing and Protecting Property Interests

Definitions

98  In this Division:

"described land" means land described in a notice of agreement;

"financing change statement" has the same meaning as in the Personal Property Security Act ;

"financing statement" has the same meaning as in the Personal Property Security Act ;

"notice of agreement" means a notice setting out

(a) the full name and last known address of each spouse who is a party to a property agreement,

(b) a description of land to which the property agreement relates, and

(c) the provisions of the property agreement that relate to the land described in the notice;

"personal property registry" means the personal property registry established under the Personal Property Security Act ;

"property agreement" means a written agreement respecting division of property and debt, with the signature of each spouse witnessed by at least one other person;

"registration" means the registration, in the personal property registry, of a financing statement in relation to a manufactured home.

Filing in land title office

99  (1) A spouse who is a party to a property agreement may sign and file a notice of agreement in the land title office of the land title district in which described land is located.

(2) On filing a notice of agreement and on paying the prescribed fee and any fees payable under the Land Title Act , the registrar may register the notice of agreement, in the same manner as a charge is registered, against the described land.

(3) If a notice of agreement is registered, the registrar must not allow registration of a transfer, a mortgage, an agreement for sale or a conveyance of the fee simple in the land, or a lease of the land, unless each spouse who is a party to the agreement signs and files in the land title office a cancellation or postponement notice.

(4) If a cancellation or postponement notice is filed or an order is made under section 101 [orders for postponement, cancellation or discharge], the registrar must cancel or postpone the registration of the notice of agreement in the same manner as the registration of a charge is cancelled or postponed.

(5) A notice of agreement or cancellation or postponement notice under this section must be made in the form and manner approved, and contain the information required, by the Director of Land Titles.

Filing in personal property registry

100  (1) A spouse who is a party to a property agreement in relation to a manufactured home may register a financing statement in the personal property registry.

(2) If a registration is made,

(a) sections 43 (1) to (3), (6) to (8) and (12) to (15), 46 to 48, 52 and 54 of the Personal Property Security Act apply, and

(b) unless the parties to the property agreement register in the personal property registry a financing change statement discharging or postponing the registration,

(i) any security interest created in the manufactured home after registration is subordinate to the interest created by the property agreement, and

(ii) the registrar of manufactured homes must not register a transfer of the manufactured home.

(3) A financing statement and a financing change statement must be made in the form and manner prescribed under the Personal Property Security Act .

(4) If a financing change statement discharging or postponing the registration is registered or an order is made under section 101 [orders for postponement, cancellation or discharge], the registrar must discharge or postpone the registration.

Orders for postponement, cancellation or discharge

101  On application, the Supreme Court may order the appropriate registrar to cancel or postpone a notice of agreement under section 99 [filing in land title office], or discharge or postpone a registration in relation to a manufactured home under section 100 [filing in personal property registry], as applicable, if a spouse

(a) cannot be located, after a reasonable search is made,

(b) unreasonably refuses to

(i) sign or file a cancellation notice under section 99 (3), or

(ii) register a financing change statement under section 100 (2) (b), or

(c) is a mentally incompetent person.

Donor of gift is party to agreement

102  If a property agreement provides that specific gifts made to one spouse or both are not disposable by the spouse or spouses without the consent of the donor, the donor is deemed to be a party to the property agreement for the purposes of changing or enforcing the property agreement with respect to those gifts.

Enforceability of interest in property

103  (1) In this section, "spouse's interest" means the interest of a spouse arising under section 81 [equal entitlement and responsibility], a property agreement or an order respecting property division.

(2) Section 29 of the Land Title Act applies to a spouse's interest in land.

(3) If, on acquiring property other than land, a person does not have actual notice of a spouse's interest in the property, the spouse's interest is not enforceable against that person.

(4) Despite subsections (2) and (3), a spouse's interest is enforceable against the other spouse from the date of separation, unless a property agreement between the spouses, or an order, provides otherwise.

Rights under this Part

104  (1) If there is a conflict between this Part and the Partition of Property Act , this Part prevails.

(2) The rights under this Part are in addition to and not in substitution for rights under equity or any other law.

Division 6 — Jurisdiction and Choice of Law Rules

Definitions and interpretation

105  (1) In this Division:

"extraprovincial property" means property located outside British Columbia;

"proper law of the relationship" means the proper law of the relationship as determined under section 107 [proper law of relationship].

(2) For the purposes of this Division, spouses do not have a common habitual residence in a jurisdiction if they live separate and apart in the jurisdiction.

Determining whether to act under this Part

106  (1) This section applies if an order respecting property division, respecting the same spouses, may be made in more than one jurisdiction.

(2) Despite any other provision of this Part, the Supreme Court has authority to make an order under this Part only if one of the following conditions is met:

(a) a spouse has started another proceeding in the Supreme Court, to which a proceeding under this Part is a counterclaim;

(b) both spouses submit, either in an agreement or during the proceeding, to the Supreme Court's jurisdiction under this Part;

(c) either spouse is habitually resident in British Columbia at the time a proceeding under this Part is started;

(d) there is a real and substantial connection between British Columbia and the facts on which the proceeding under this Part is based.

(3) For the purposes of subsection (2) (d), a real and substantial connection is presumed to exist if one or more of the following apply:

(a) property that is the subject of the proceeding is located in British Columbia;

(b) the most recent common habitual residence of the spouses was in British Columbia;

(c) a notice of family claim with respect to the spouses has been issued under the Divorce Act (Canada) in British Columbia.

(4) Despite subsection (2), a court may decline to make an order under this Part if the court, having regard to the interests of the spouses and the ends of justice, considers that it is more appropriate for jurisdiction to be exercised outside British Columbia.

(5) In determining whether to decline jurisdiction under subsection (4), the court must consider all of the following:

(a) [Repealed 2014-9-15.]

(b) the relative convenience and expense for the spouses and their witnesses;

(c) if section 108 [choice of law rules] applies, the law to be applied to issues in the proceeding;

(d) the desirability of avoiding multiple proceedings or conflicting decisions in different courts or tribunals;

(e) the extent to which an order respecting property or debt

(i) made in another jurisdiction would be enforceable in British Columbia, and

(ii) made in British Columbia would be enforceable in another jurisdiction;

(f) the fair and efficient working of the Canadian legal system as a whole;

(g) any other circumstances the court considers relevant.

(6) A determination of authority under subsection (2) or of whether to decline jurisdiction under subsection (4) is to be made solely by reference to this section.

Proper law of relationship

107  The proper law of the relationship between the spouses for the purposes of section 108 [choice of law rules] is

(a) the internal law of the jurisdiction in which the spouses had their most recent common habitual residence,

(b) if the jurisdiction under paragraph (a) is outside Canada and is not the jurisdiction most closely associated with the relationship between the spouses, the internal law of the jurisdiction that is most closely associated with the relationship between the spouses, or

(c) if the spouses did not have a common habitual residence, the internal law of the jurisdiction in which the spouse making an application for an order under this Part was most recently habitually resident.

Choice of law rules

108  (1) In this section, "regime of community of property" means a system of law, including a regime of partnership of acquests, in which property owned or acquired and debt owing or acquired during the relationship between the spouses

(a) are deemed to be owned or owing by both spouses, and

(b) are divided, on separation of the spouses, as if both spouses equally owned the property or owed the debt,

but does not include a regime of separate property or a system of law under which a spouse's interest is deferred until or after the occurrence of an event that signifies the end of the relationship between the spouses.

(2) If the Supreme Court takes jurisdiction under this Division, the Supreme Court must act in accordance with the rules set out in this section.

(3) Subject to subsection (4), if spouses make an agreement respecting the division of property or debt, the substantive rights of the spouses in a proceeding under this Part are determined by the agreement.

(4) The enforcement of an agreement under subsection (3) is subject to any restriction that the proper law of the relationship places on the ability of spouses to determine the division of property or debt by agreement.

(5) Subject to subsection (3), if the spouses' first common habitual residence during the relationship between the spouses was in a jurisdiction in which a regime of community of property applies, property owned or acquired and debt owing or acquired during the relationship between the spouses that is property or debt to which the regime of community of property applies must be divided at the end of the relationship between the spouses according to that regime of community of property.

(6) If neither subsection (3) nor (5) applies, the substantive rights of spouses in a proceeding under this Part must be determined according to the proper law of the relationship.

Extraprovincial property

109  (1) If the Supreme Court has authority under this Division to make an order respecting extraprovincial property, the Supreme Court may make an order respecting the ownership and division of the extraprovincial property.

(2) For the purposes of dividing extraprovincial property, the Supreme Court, on application by a spouse, may make an order to do one or more of the following:

(a) instead of dividing the extraprovincial property,

(i) require property or family debt within British Columbia to be substituted for rights in the extraprovincial property, or

(ii) require a spouse who has legal title to the extraprovincial property to pay compensation to the other spouse;

(b) if the court is satisfied that it would be enforceable against a spouse in the jurisdiction in which the extraprovincial property is located,

(i) preserve the extraprovincial property,

(ii) provide for the possession of the extraprovincial property,

(iii) require a spouse who has legal title to the extraprovincial property to transfer all or part of the spouse's interest in the extraprovincial property to the other spouse, or

(iv) provide for any other matter in connection with the extraprovincial property;

(c) if the court is satisfied that it would be enforceable in the jurisdiction in which the extraprovincial property is located, provide for non-monetary relief.

Contents | Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14