How To Win BC Family Property Debt Division cases require an understanding of four key points:
- What is the date the relationship started and ended?
- What types of property are involved?
- What types of debt are shared?
- What valuation dates are to be used?
Our top rated* How To Win BC Family Property Debt Division lawyers will guide you through this tricky area. Call us toll free across BC and in Calgary at 1-877-602-9900
What is the date the relationship started and ended?
- Relationship Start Date-Section 3 of the BC Family Law Act “FLA” expands the definition of “spouse” to include common law spouses, who have lived together for at least two years, for the purposes of property and pension division. The start and end dates of a spousal relationship are important to determine when rights or responsibilities accrue under the Family Law Act, particularly respecting property division.
- The date spouses started cohabitation in a marriage like relationship is the start date of the relationship for valuation of pre-acquired property for both spouses who later marry and those who continue to live in a marriage like relationship.
- Proving the commencement date when parties started their marriage like relationship is trickier than proving the date you married. Don’t think the start date of your relationship is automatically the wedding date and be prepared to prove the level of commitment in your relationship to justify it was common law/ marriage like.
- Relationship End date– FLA Section 3 provides guidance for determining the date of separation.
Here is a list of tips from LSS of BC to determine when you started a marriage like relationship and when it may have ended. Did you:
- file your taxes together
- sleep in the same bed
- continue to have sex
- take vacations together
- visit each other’s relatives
- follow the same rituals as before (such as celebrating holidays, attending religious services, etc.)
- prepare meals together
- eat meals together
- divide household tasks in the same way
- attend social events together
- support each other in times of crisis
- attend counselling to try to improve your relationship
- pay expenses jointly
- list each other as spouse on medical plans, insurance policies RRSP and pension designations etc.
ALERT – How To Win BC Family Property Debt Division
In unmarried marriage like relationships, proving you lived together as spouses for over 2 years is a frequent source of dispute before the courts BECAUSE if you didn’t live together for over 2 years AND you don’t start your claim within 2 years of separating you have no FLA property division rights.
What types of property are involved?
The Family Law Act Explained Summary states:
Family property will include all real and personal property owned by one or both spouses at the date of separation unless the asset in question is excluded, in which case only the increase in the value of the asset during the relationship is divisible. Whether an asset was ordinarily used for a family purpose is not relevant to deciding if it is family property. The exclusions include:
- property acquired before or after the relationship (except if acquired with family property!);
- gifts or inheritances to one spouse alone;
- damage awards and insurance proceeds with some exceptions; and
- some kinds of trust property.
BC Family property will most likely to be divided equally INCLUDING the gain on the value of the exclusions above. The ability to obtain unequal division of family is now severely restricted because the new exclusions provide for remedies for unfairness in family property division by another improved method.
What Debts Are Shared
FLA Section 86 describes family debt and how it is divided. The starting point is that all debts incurred by either spouse during the relationship are to be equally divided. Personal debts such as gambling losses, escort fees, improvident and hidden use of funds are an exception and may be payable by one spouse only. There is an exception for debt incurred after the date of separation where it is incurred to maintain family property. Since both spouses generally continue to benefit from the family property until it is divided, both are presumed to be responsible for the cost of maintaining that property until that time. There can also be reapportionment/unequal division of BC family property to credit a person for solely maintaining and improving a family property by paying family debts solely after separation.
Section 87 describes how and when the value of property and debt is to be determined.
87 Unless an agreement or order provides otherwise and except in relation to a division of family property under Part 6,
(a)the value of family property must be based on its fair market value, and
(b)the value of family property and family debt must be determined as of the date
(i)an agreement dividing the family property and family debt is made, or
(ii)of the hearing before the court respecting the division of property and family debt.
It establishes a valuation date that is either the date of an agreement or the date of a court hearing dividing the property. A different date may be selected by agreement or court order and some recent judgments have used the date of separation in cases of long separations where someone paid all the expenses related to a family property and there has been a significant change in value.
Don’t make the mistake of thinking the valuation date is the date you separated. In 98% of cases it will be the date of settlement or trial. Act promptly to avoid disappointment in a Bc family property debt division case. Make sure costs of disposition and potential latent tax costs are considered with respect to various types of property. Remember not all family property is created equally from a valuation standpoint!
Get Our Top Rated* Family Property Debt Division lawyers on your side early on to ensure justice is served promptly.
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