The division of assets in BC is governed by Part 5 of the Family Relations Act.  Only married couples are entitled to a division of property under the Family Relations Act.  

The definition of spouse includes same-sex spouses, however unmarried spouses are expressly excluded.  Absent a cohabitation agreement, if an unmarried person wants to make a property claim, they must do so by relying on the common law principle of unjust enrichment.

For married persons, upon the happening of a triggering event, each party has a rebuttable entitlement to a one half interest in all the other spouses' assets.

The Family Relations Act provides for the following four triggering events:

• a separation agreement is signed;
• court declares no reasonable prospect of reconciliation;
• there is an order for dissolution of the marriage;
• a declaration is made that the marriage is null and void.

Upon a triggering event, the spouses hold all assets as tenants in common regardless of the legal ownership of the assets.  Although there is a presumption of equal division, either spouse may apply to apportion the family assets in favour of one spouse if an equal division is proven to be unfair having regard to the following criteria:

• duration of marriage;
• duration of the period which the spouses lived separate and apart;
• extent property was acquired by one spouse through inheritance or gift;
• date when property was acquired or disposed of;
• the needs of each spouse to remain self sufficient and economically independent;
• any other circumstances relating to the acquisition, preservation, maintenance, improvement or use of the property, of the capacity or liabilities of a spouse.

If parties cohabited prior to marriage, their contributions to the acquisition or maintenance of an asset is relevant.

No court in British Columbia has jurisdiction to make a vesting order affecting title to real property situated outside the province, although the courts can order that a person effect the transfer.

 Family Assets

Family assets are defined very broadly as assets that have been “ordinarily” used for family purposes.  Ordinarily means during the customary life of the family rather than a casual or occasional usage.  The onus is on the spouse claiming that the asset is not a family asset to prove it was not ordinarily used for a family purpose.  Once an asset was used for a family purpose, it cannot easily lose that status.

Family assets tend to include personal property, bank accounts, GIC, pensions, RRSP’s, land, business ventures, CPP benefits, etc.  Ultimately, what is charachterized as a family asset is  determined on a case by case basis.

All assets acquired after separation will generally be excluded as a family asset.  Prospective inheritances to which a spouse might become entitled to are not considered family assets. 

Certain business assets may be excluded provided that (1) the property was used primarily for business and (2) the non-owning spouse did not contribute to the acquisition or operation of the business.  Therefore, if a spouse worked in a business (paid or unpaid), contributed or allowed family assets to be used, or assumed a financial risk such as providing security, the business asset may be characterized asa  family asset.

An assets that has been acquired in whole or in part by means of a family asset must in itself be a family asset.  A spouse’s contribution is not lost just because an asset has been sold and the proceeds have been converted directly or indirectly into other assets.

Variation of an order dividing family assets is not possible under the Family Relations Act except on appeal.