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Desy Wahyuni (talk | contribs) (Created page with "{{LSLAP Manual TOC|expanded = family}} == A. General == The FRA only applies to proceedings started prior to March 18, 2013 and to agreements made before the ''FLA'' came in...") |
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'''NOTE:''' BC is one of the few provinces that allow spouses to enter into a written agreement to waive the equalization of their pensionable credits under the CPP. | '''NOTE:''' BC is one of the few provinces that allow spouses to enter into a written agreement to waive the equalization of their pensionable credits under the CPP. | ||
=== 4. Real Property === | |||
It is often necessary to take early steps to secure the title to real property when there is a separation. In fact, it is recommended for clients to file as soon as possible to avoid missing any limitation dates and preserve their claim. This is particularly so where property is registered in the name of only one spouse, and there is a risk of that party disposing of or encumbering the property, or where judgments are likely to be registered against one party’s interest, which might prejudice the other party. Under section 91 of the ''FLA'', one may request an automatic restraining order to prevent the sale of family assets including real property. There are several ways of protecting a spouse’s interest. | |||
==== a) Certificates of Pending Litigation and Caveats ==== | |||
Caveats and Certificates of Pending Litigation are warnings to potential purchasers and establish claim priority over the property from the day the Caveat or Certificate of Pending Litigation is filed. This document will defeat the presumption of claim priority given to the bona fide purchaser for value. Entitlement to a certificate of pending litigation is limited. See the ''Land Title Act'', RSBC 1996, c250 and ''Annotated Land Title Act'' by Gregory and Gregory for the procedure and forms. Note that Caveats have an expiry date and are therefore a temporary measure to protect a party’s interest. | |||
==== b) Land (Spouse Protection) Act, RSBC 1996, c 246 ==== | |||
This Act applies where a party has elected not to commence legal proceedings, but needs to protect his or her interest in real property. It provides an alternative to a Certificate of Pending Litigation for a married spouse (not common law) where the “property” was the “matrimonial home”. The Act allows a charge to be placed on land that will prevent disposition of the property without the written consent of the applicant for the charge (refer to the ''Land (Spouse Protection) Act'' and the ''Land Title Act'' for the registration procedure). Note that this only applies while the parties are legally married. The charge may be struck out on the death of, or final divorce from, the applicant. | |||
Registration of a charge by one spouse under the ''Land (Spouse Protection) Act'' prevents the other spouse from selling or encumbering his or her share, but is not protection against a creditor who could obtain an order for sale of the house. So long as one is legally married to his or her spouse, one may file against the property without the other spouse’s notice or consent, in order to prevent the transfer of the property. | |||
==== c) Registration of a Notice Under the Land Title Act ==== | |||
A spouse who is a party to a marriage agreement or a separation agreement may file a notice in the Land Title Office regarding any lands to which the agreement relates, ''Family Law Act'', s 99. This applies to married spouses and common law spouses who have lived in a marriage-like relationship for at least two years. | |||
The information required in the notice includes the names and addresses of the spouses, the legal description of the land, and the provisions of the agreement relating to that land. The Registrar may then register this notice in the same manner as a charge on the land. | |||
Once the notice is registered, there can be no subsequent registration of a lease, mortgage, transfer, etc., unless both spouses or former spouses sign a cancellation or postponement notice in the prescribed form. A spouse or former spouse may apply to the Supreme Court for an order to cancel or postpone a notice where the other party to the agreement cannot be found after reasonable search, or unreasonably refuses to sign a cancellation or postponement, or is mentally incompetent. | |||
The use of this notice also extends to mobile homes. | |||
==== d) Supreme Court Family Rules ==== | |||
Generally, Rule 15-8 of the Supreme Court Family Rules governs legal remedies for joint tenants. Where a dispute arises, an application can be made to the Supreme Court to settle the matter, but clients should be advised that a court action is costly and a negotiated settlement is generally to their advantage because courts have a wide discretion to distribute matrimonial property under Rule 15-8. E.g., a court could order the sale of property at a time when the housing market is poor, resulting in a low sale price. Sometimes, a spouse should consider selling his or her interest in a property to the other spouse. | |||
==== e) Limitation Period ==== | |||
A former spouse is considered a “spouse” within the meaning of the FRA(s 1), ''FLA'' (s 3) for the purpose of proceedings to enforce or vary an existing order. However, where an entirely new order is sought, the parties cease to be “spouses” within the meaning of the Act after 2 years has passed since the order granting the divorce was made. This distinction has engendered a debate as to whether there is a limitation period for the redistribution of property “between spouses” under the FRA. See ''Staires v Staires'' (1991), 34 R.F.L. (3d) 376 (BCS.C.) and ''Tatlock v Tatlock'' (1992), 71 BCLR (2d) 194 (SC). The Supreme Court of Canada partially addressed the issue in ''Stein v Stein'', [2008] 2 SCR 263, 2008 SCC 35, para. 12: “...the [''Family Relations Act''] does not place any temporal limits on the division of assets. Nor does it state that once assets have been subject to an initial division, a reapportionment cannot occur at some point in the future”. | |||
Practically speaking, since a court order granting a divorce will usually include provisions respecting the division of property, it would be somewhat uncommon to make an initial application for the division of property after the divorce. Should the issue arise however, clinicians are advised to carefully review both the case law, and s 3 of the ''FLA''. Clients should be advised to bring applications for the division of property within 2 years of the divorce. | |||
'''The ''FLA'' allows common law spouses only two years to apply for property division and spousal support after separation date (s 198). Note the limitation period may be suspended for both married and unmarried spouses if they were''' engaged in family dispute resolution with a family dispute resolution professional. | |||
Under the new limitations statute of 2012, there is no longer a limitation date for claims on arrears of spousal and child support payments. Once a distribution scheme for family property is set, either by the Court or by agreement, it is always enforceable subject to the relevant case law. | |||
==== f) Interim Relief ==== | |||
A court may order temporary occupation and possession of the family residence and its contents by just one spouse (, ''FLA'' s 89). The ''FLA'' allows the Court to issue temporary orders regarding who may live in the family residence (s 90). | |||
=== 5. Business Assets === | |||
Under the ''FLA'', business property is no longer singled out as it was in the ''FRA''. Business property is family property unless it is excluded property under the ''FLA''. | |||
== D. Use of Assets == | |||
The Court can award one spouse exclusive use of assets pending further agreement between the parties or a Court order. This can include large assets such as a home and car; or smaller assets as may be required to operate a business, or for the departing spouse’s television, computer, books, for example. | |||
== E. Unmarried Couples == | |||
Under the ''FLA'', unmarried couples who have lived in a marriage-like relationship for at least two years are treated the same way as married couples. Unless an action was started under the ''FRA'', the ''FLA'' now applies (as long as the time limit has not expired) and may apply even if proceedings have already beencommenced. | |||
The courts will recognize an equitable interest of a common law spouse in all the property and assets acquired by the couple through the joint efforts of the two spouses, although registered in the name of the other spouse (i.e. a constructive trust). The scope of constructive trusts was greatly expanded in ''Peter v Beblow'' (1993), 3 WWR 337, 77 BCLR (2d) 1, in which the Court found a constructive trust arising from the contributions made by homemaking and childcare services, which allowed for the inclusion of money that would otherwise be paid for such services to be used as mortgage payments. Claims in trust may be constructive, resulting, or express. Constructive trusts are the most common type of trust claim, where the Court imposes a trust to remedy the unjust enrichment of one party at the deprivation of theother. However, there are limits, and a court will not interfere where the elements of constructive trust are not present. A causal connection must be found to exist between the contribution made and the property in question. Refer to a general text for a more comprehensive description of the elements of constructive trust. | |||