Difference between revisions of "Assets of Couples (3:IX)"

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{{LSLAP Manual TOC|expanded = family}}
{{LSLAP Manual TOC|expanded = family}}


== A. Family Law Act ==
== A. General ==


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''.  
The ''FRA'' only applies to proceedings started prior to March 18, 2013 and to agreements made before the ''FLA'' came into force. Please view an older version of this manual if the ''FRA'' applies to your matter.


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.  
The division of property on marriage breakdown is dealt with in Part 5 of the ''FLA''. When the ''FLA'' replaced the ''FRA'', it significantly changed the property law regime in British Columbia and reduced judicial discretion. It is a simpler model designed to help parties achieve resolutions out of Court. It operates on the presumption that spouses are equally entitled to family property and equally responsible for family debt (s 81). It also provides that unmarried spouses (who have lived together in a marriage-like relationship for at least two years) may avail themselves of the property and liability provisions of the ''FLA'' in Parts 5 and 6.
 
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 ==
== B. Legislation ==
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=== 1. Divorce Act [DA] ===
=== 1. Divorce Act [DA] ===


The DA does not deal with property division.
The ''DA'' does not deal with property division.


=== 2. Family Law Act [FLA] ===
=== 2. 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.
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 FLA carves out a category of excluded property under section 85. Section 85 (1) of the FLA reads as follows:   
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* (b) Inheritances to a spouse;  
* (b) Inheritances to a spouse;  
** (b.1) Gifts to a spouse from a third party;  
** (b.1) Gifts 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  
*(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  
** (i) Loss to both spouses, or  
** (ii) Lost income of a spouse;  
** (ii) Lost income of a spouse;  
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** (ii) Lost income of a spouse;  
** (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;  
* (e) Property 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  
* (f) A spouse's beneficial interest in property held in a discretionary trust  
** (i) To which the spouse did not contribute, and  
** (i) To which the spouse did not contribute, and  
** (ii) That is settled by a person other than the spouse;  
** (ii) That is settled by a person other than the spouse;  
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== G. Limitation Period ==
== G. Limitation Period ==


See Section XV Part B: Limitation Dates for the limitation periods for beginning property division proceedings for married spouses and common-law spouses. [[Limitation Dates (3:XV) |Section XV Part B: Limitation Dates]]
See Section XV Part B: Limitation Dates for the limitation periods for beginning property division proceedings for married spouses and common-law spouses.






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