Assets of Couples (3:IX)
| This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 12, 2021. |
A. Family Law Act
Under the FLA, a court may issue a family law protection order against a family member in a dispute when there is a likelihood of family violence. Family violence is inclusive of physical, emotional, or psychological abuse. When children are involved, both direct and indirect exposure to violence meet the definition of family violence in s 1 of the Act.
Applications for a protection order can be made alongside applications for other family court orders or on their own. The involvement of the criminal justice system is not required. Applications can be made in both Provincial Court and Supreme Court.
There is no cost to apply for a protection order in BC Provincial Court. If you are seeking a divorce, you may apply for a protection order at the BC Supreme Court for a fee ($80 for divorce proceedings that have begun, and $200 if not). It is possible to obtain an order to waive fees at the Supreme Court. The Legal Services Society publication “For Your Protection” outlines the process and the forms required to seek a protection order. https://family.legalaid.bc.ca/publications/your-protection
Before issuing a protection order, courts will consider the history of family violence, the nature of that violence, the present relationship between the at-risk family member and the violent family member, and circumstances which increase the risk of violence or the vulnerability of the at-risk family member (s 184(1)).
Protection orders may prohibit direct or indirect communication, attending locations frequently entered by the at-risk family member, and possessing a weapon (see s 18(3) for additional prohibitions). Unless the court establishes otherwise, an order will expire one year after the date it is issued.
B. Legislation
- Divorce Act [DA]
The DA does not deal with property division.
- Family Law Act [FLA]
Section 81 of the FLA outlines that each spouse is entitled to an undivided, one-half interest of family property and is equally responsible for debt upon separation (Stonehouse v Stonehouse, 2014 BCSC 1057; Joffres v Joffres, 2014 BCSC 1778). However, the FLA substantially changes what is considered to be family property, essentially allowing spouses to keep property they bring into a relationship and share only in the increase in value of that property and the net value of new property obtained after cohabitation or marriage.
The FLA carves out a category of excluded property under section 85. Section 85 (1) of the FLA reads as follows: The following is excluded from family property:
- (a) Pproperty acquired by a spouse before the relationship between the spouses began;
- (b) Iinheritances to a spouse;
- (b.1) Ggifts to a spouse from a third party;
- (c) Aa settlement or an award of damages to a spouse as compensation for injury or loss, unless the settlement or award represents compensation for
- (i) Lloss to both spouses, or
- (ii) Llost income of a spouse;
- (d) Mmoney paid or payable under an insurance policy, other than a policy respecting property, except any portion that represents compensation for
- (i) Lloss to both spouses, or
- (ii) Llost income of a spouse;
- (e) Pproperty referred to in any of paragraphs (a) to (d) that is held in trust for the benefit of a spouse;
- (f) Aa spouse's beneficial interest in property held in a discretionary trust
- (i) Tto which the spouse did not contribute, and
- (ii) Tthat is settled by a person other than the spouse;
- (g) Pproperty derived from property or the disposition of property referred to in any of paragraphs (a) to (f).
C. Types of Assets
D. Use of Assets
E. Unmarried Couples
F. Interim Relief
G. Limitation Period
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