Divorce isn’t easy. So much uncertainty arises. A big question for separating spouses is “Who gets what in a divorce in BC?”
It’s extremely important that you understand your legal rights and entitlements when going through a divorce. If you don’t, you could lose out on spousal support, end up with less than your fair share of assets, or be left with more than your share of the debt incurred during your marriage.
If you choose to hire a family law lawyer from Onyx Law Group, you get the benefit of clear legal advice and help navigating the complex and emotionally charged process of divorce. Our lawyers have a deep understanding of the legal issues surrounding divorce, including property disputes, child custody, relocation and more.
Overview of Divorce Law in British Columbia
Canada’s Divorce Act and Family Law Act of BC
There are two main laws that apply to divorce and family law disputes in BC:
- Canada’s Divorce Act, which only applies to spouses who are or were legally married; and
- BC’s Family Law Act, which applies to both married spouses, common law spouses (those who have been living together in a marriage-like relationship for at least two years), and unmarried couples.
The Divorce Act deals with divorce, child support, spousal support, and parental rights and responsibilities (what used to be known as “custody” and “access”). The Family Law Act deals with division of property and debt, guardianship of children, parenting arrangements (parenting responsibilities and parenting time), contact with a child, child support, and spousal support.
An experienced family lawyer can help you determine which law applies in your circ*mstances.
Process of divorce in BC
Divorce is the only way to legally end a marriage, but there are several approaches resolving family law issues so that you are in a position to apply for a divorce order. Note that you don’t need a divorce order to end a common law marriage.
For example, if you are legally married, you can apply to the BC Provincial Court using the FLA to resolve support issues and issues pertaining to your children, and then apply to the Supreme Court of BC for an uncontested divorce (also called a desk order divorce). Or, you and your spouse can negotiate a separation agreement and later apply for a divorce order. Another alternative is to bring a contested divorce application, asking a judge of the Supreme Court to decide all outstanding family law issues and then grant you a divorce.
See herefor more on the process of divorce in BC, or reach out to one of our family lawyers. We can explain the options and help you decide which approach is ideal for your family claim.
Division of Property and Assets in a BC Divorce
Does my spouse get half of everything in a divorce Canada?
If you are a BC resident, the Family Law Act applies to the division of property and assets on separation whether you are legally married or common law spouses. BC’s Family Law Act says “family property” and “family debt”are divided 50/50 between spouses unless it is significantly unfair to do so. “Excluded property”, on the other hand, is presumed to remain the property of the spouse who owns it.
You and your spouse can agree to an unequal division of family property and family debt based on what you view as fair. This can be done by separation agreement made after your relationship breaks down, or you may already have a cohabitation agreement or marriage contract in place that addresses division of property and debt on separation.
What is “family property” and “family debt”?
The basic rule is that property and debt are split equally between you and your spouse on separation. But that begs the question: what is family property and what is family debt?
Generally speaking, family propertyis what you and/or your spouse bought or accumulated during your cohabitation or marriage. It includes all assets and property owned by either one or both spouses at the time of separation, and any asset or property that one spouse has a beneficial interest in at separation. Examples include:
- your family home
- other real estate (cottages, investment properties, condos, etc.)
- RRSPs, RRIFs, TFSAs
- bank accounts
- investments
- insurance policies
- pensions
- businesses
- certain types of property held in trust
- any gain in the value of excluded property.
Family debt includes all financial obligations incurred by one spouse or both spouses during their relationship. It also includes debts taken on after separation if the debt was incurred to maintain family property. BC law says spouses must equally share family debt even if one spouse’s name isn’t on the debt. Common examples of family debt include:
- mortgages
- loans
- lines of credit
- credit cards
- income tax liabilities
- vehicle financing
What is “excluded property”?
Excluded property is property brought into marriage or cohabitation by one spouse. It also includes:
- inheritances received by one spouse
- gifts to one spouse from a third party
- settlement or damage awards to a spouse as compensation for injury or loss
- insurance proceeds, other than a policy respecting property
- one spouse’s beneficial interest in property held in a discretionary trust.
Excluded property is not subject to equal division on separation, but there is a catch: any increase in the value of the excluded property is subject to equal division. You should also be aware that excluded property can lose its exclusion from equal division if it is commingled with other family assets or used to purchase family property (e.g., one spouse puts their inheritance into a joint bank account or uses their inheritance to buy a home in the spouses’ joint names).
When is a 50/50 split significantly unfair?
As mentioned, the presumption of equal sharing of family property and family debt may not apply if it would be “significantly unfair” to one spouse to divide it equally. The court can order family property and family debt to be divided unequally based on a consideration of several factors, such as:
- the length of your relationship
- how debt was acquired
- each spouse’s ability to pay debt
- whether debt exceeds property value
- whether one spouse did something to increase family debt or lower family property value after separation.
Remember as well that spouses can agree that something other than a 50/50 split of family property and debt is fair, and enter into a properly signed and witnessed written agreement reflecting that.
Spousal Support
Who can claim for spousal support in BC?
Both married and common law spouses can make a claim for spousal support. A partner in a common law relationship can be entitled to spousal support if the relationship was “marriage-like” for a continuous period of at least two years.
A married spouse can apply for orders for spousal support under BC’sFamily Law Act,SBC 2011, c. 25or Canada’sDivorce Act,(R.S.C., 1985, c. 3 (2nd Supp.)). A common law spouse must apply for spousal support under the FLA.
Are you entitled to spousal support?
The same basis for spousal support applies whether the spouses were married orcommon-law. A spouse must prove their entitlement to spousal support on one or more of the three recognized grounds:
- Contractual (e.g., a marriage agreement),
- Compensatory, and/or
- Non-compensatory (also referred to as “needs-based”).
Factors that influence the spousal support issue include the length of your relationship, the roles and functions performed by each of you during your relationship, and any order, agreement or arrangement relating to support of either spouse.
How much spousal support am I entitled to BC?
Once you have established that you are entitled to spousal support, the next issues are how much, and for how long. TheSpousal Support Advisory Guidelines(“SSAG”) are helpful to provide ranges of support in a variety of situations to help spouses figure out amount and duration of spousal support.
That being said, the calculation of spousal support is one of the more complex family law issues. Have a look at our previous article for more on calculating spousal support in BC,or reach out an experienced family lawyer for advice and guidance on your spousal support claim.
Child Support
What is child support?
Child supportis the money paid by one parent to another after a separation or divorce to help with the costs of raising a dependent child. It is usually paid on a monthly basis, and is meant to cover day-to-day expenses such as shelter, food, clothing, hygiene needs, and entertainment.
In addition to child support, there is also a requirement that parents to contribute to the child’s reasonable or necessary “special or extraordinary” expenses that fall outside of day-to-day expenses (common examples include heath care, dental care, tutoring, private school tuition, and the cost of certain extracurricular activities). The general rule is that parents share special or extraordinary expenses in proportion to their incomes, but they can agree to share these amounts in a different way.
How child support is calculated in BC
Child support is based on the paying parent’s income, how many children they have, and what province they live in. In most cases, theamount of child support is determined by the Federal Child Support Guidelines, SOR/97-175 which contain a set of rules and tables for calculating the amount of child support that a paying parent should pay.
Calculating child support is relatively easy when the paying parent has steady employment income. Calculation of child support becomes very tricky when the paying parent is unemployed, underemployed, earns corporate or business income, or has income that fluctuates from year-to-year.
The parenting arrangement also impacts the calculation of child support. When one parent lives with the child(ren) most of the time, the other parent pays child support based on the Guidelines. The situation is different if a shared or split parenting arrangement is in place. For example, if the child(ren) spend equal or close to equal time with both parents, then the parent who has the higher income pays child support to the other parent, usually at a reduced amount.
Tax Considerations in a BC Divorce
There can be significant tax implications that must be taken into account when negotiating a divorce settlement. For example, money received when you cash in an RRSP or profit realized from the sale of property that isn’t your family’s primary residence will have tax consequences. The CRA deems amounts received as taxable income; that must be factored in when determining what division of family property is fair.
You should also be aware that while child support is not taxable income in the hands of the recipient or tax deductible by the paying parent, spousal support is treated differently. Generally speaking, spousal support is tax deductible for the “payor” (i.e., the person paying spousal support) and considered taxable income under the Income Tax Act of Canada in the hands of the recipient.
Get trusted advice from our team of BC family lawyers
If you have questions about your entitlements on divorce in BC, Onyx Law Group has the expertise and knowledge to help guide you through the process and answer any questions you may have.Contact us todayto schedule an initial consultation and take the first step towards a positive and successful outcome.
