Property division
Property division lawyer in Surrey, BC
In British Columbia, family property is divided equally between spouses, whatever the title says and whoever paid for it. Family property is what either spouse owns on the date of separation, and excluded property, which mainly means what you brought into the relationship plus gifts and inheritances, stays with its owner, although any increase in its value during the relationship is shared.
We handle property division for married spouses and for common law spouses who lived together for at least two years, including files involving businesses, pensions, real property held with family members, and assets outside Canada.
The short version
Two questions decide most files. What was owned on the separation date, and what part of it is excluded. The increase in value of excluded property during the relationship is family property, which is why the value at the start of the relationship matters as much as the value today.
What counts as family property?
Family property is all real and personal property owned by either spouse on the date of separation, unless it is excluded. That includes the family home, bank accounts, investments, RRSPs and TFSAs, pensions, vehicles, an interest in a business, and the increase in value of excluded property during the relationship.
It does not matter whose name is on the title, who earned the money, or who made the payments. Property acquired after separation using family property is also family property.
What is excluded property?
Excluded property is property one spouse brought into the relationship, plus inheritances and gifts received from a third party during the relationship, certain court awards and insurance proceeds, and some trust interests. The owner keeps the value it had at the start.
The increase in value during the relationship is family property and is shared. The spouse claiming the exclusion has to prove it, which means records: a statement showing the account balance at the start of the relationship, the purchase documents for a property, the estate paperwork for an inheritance.
Is it always split equally?
The starting position is equal division of family property and family debt. Section 95 of the Family Law Act allows a court to depart from equal division only where an equal split would be significantly unfair.
Significantly unfair is a high bar. It means more than merely unfair. Courts look at the length of the relationship, agreements between the spouses, a spouse's contribution to the other's career, and whether one spouse significantly reduced the value of family property. Departures are not routine.
What about a home one of us owned first?
The home's value at the date the relationship began, or the date it became a marriage like relationship, is generally excluded and stays with the owner. The increase in value from that point to separation is family property and is divided.
Mortgage paydown, renovations funded from family income, and a transfer into joint names all complicate this. Order an appraisal at the relationship start value where you can establish it, because the exclusion is worth exactly as much as the evidence behind it.
How are pensions, RRSPs and businesses handled?
Pensions earned during the relationship are family property. Division of a BC registered pension follows Part 6 of the Family Law Act, using the prescribed forms sent to the plan administrator. Federal plans have their own process.
RRSPs can be divided by a rollover so neither spouse triggers tax on the transfer. Business interests usually need a valuation, and if the business is the income source for support as well, care is needed to avoid counting the same value twice.
“She is extremely knowledgeable, and an experienced family law lawyer. I would highly recommend her to those who are looking for an experienced family law lawyer to deal with all family law matters.”
How we can help
- 01 Identifying and valuing family property and tracing excluded property
- 02 Division of the family home, including buyouts and sale terms
- 03 Pension division under Part 6, and tax neutral division of registered accounts
- 04 Business valuation issues, and coordinating property division with support
- 05 Applications for disclosure where assets have not been fully accounted for
- 06 Claims of significant unfairness where an equal division does not fit the facts
The path a matter takes
Every file is different, but the shape is usually the same. Timings are typical, not promised.
01
First conversation
What has happened, what you want, and what the law actually allows.
Week one
02
Disclosure
Income, property and debt on the table for both sides. Nothing moves without it.
Weeks 2-8
03
Negotiation or mediation
Most matters resolve here, in writing, without a courtroom.
Months 2-6
04
Agreement or order
Terms signed, or filed with the court so they can be enforced.
On resolution
Frequently asked questions
What counts as family property in BC?
Everything either spouse owns on the date of separation unless it is excluded: the home, accounts, investments, pensions, vehicles and business interests. Title and who paid do not determine it.
What is excluded property?
Property brought into the relationship, inheritances and third party gifts, certain damages awards and insurance proceeds. The owner keeps the starting value, but the increase in value during the relationship is shared.
Is family property always split equally?
Equal division is the starting point. A court can depart from it only where an equal split would be significantly unfair under section 95 of the Family Law Act, which is a high threshold.
What about a home one of us owned before the relationship?
Its value at the start of the relationship is generally excluded. The increase in value up to separation is family property. Transferring the home into joint names can affect the exclusion, so get advice before doing it.
How are pensions and RRSPs divided?
Pension entitlement earned during the relationship is family property, divided using the forms prescribed under Part 6 of the Family Law Act. RRSPs can be split by rollover without triggering tax on the transfer.
What about an inheritance?
An inheritance received by one spouse is excluded property. If it was deposited into a joint account or used to buy a jointly held asset, the exclusion becomes harder to trace, so keep the paper trail.
What if I think assets are being hidden?
Both spouses must give full financial disclosure. A court can order production, award costs, draw adverse inferences, and set aside transfers made to defeat a claim. Cryptocurrency and other digital assets must be disclosed.
What does significantly unfair mean?
More than simply unfair. It is a deliberately high bar that keeps equal division as the norm. Courts consider the length of the relationship, any agreement, contributions to the other spouse's career, and conduct that reduced the value of family property.
This page is general information about family law in British Columbia. It is not legal advice for your situation, and the law changes. Speak with a lawyer about the facts of your own matter.
