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New Directions for Property Division in British Columbia

Kevin Heinrichs

Written by: Kevin Heinrichs (View All Posts • View Bio) Published: August 26, 2014

Categorized: Property Division.
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In March 2013 the new Family Law Act came into force in British Columbia.  This act replaced the Family Relations Act and amongst other things It overhauled how property division works in British Columbia when married or common law spouses are separating.  One of the provisions of the new Family Law Act was that any cases that started under the Family Relations Act would continue under the Family Relations Act for the purposes of property division unless both sides agreed otherwise.  Because of this, it has been a long wait for cases to come out that deal with property division under the Family Law Act.

Recently however we have been seeing more and more of these, which is allowing BC lawyers to better advise clients about property division.  One recent such case is Remmem v. Remmem, 2014 BCSC 1552.  In that case the court dealt with a number of uncertainties about how the law would function in certain circumstances.  Joseph Broadhurst of our firm has summarized some of the important points from this case below.

Under the new act, parties are entitled to have certain property treated as “excluded” property, and therefore not be divided.  Remmem looked at a few situations that call these exclusions into question.  The first such situation is when an excluded asset has declined in value since the date of marriage.  In Remmem the Court determined that if an excluded asset declines in value, you cannot make the difference up out of other family assets unless it would be significantly unfair to do otherwise.

The second issue is whether a spouses loses all or part of an exclusion if they transfer the property into joint ownership with their spouse.  The Court determined that you do not lose your exclusion simply by virtue of making your spouse the joint owner of the property.

None of this is set in stone of course, the case law is still developing and the case could be appealed.  However, for the moment we have some clarification on certain points about property division that should help lawyers and spouses have a better idea of their rights when they are separating.

Author:  Joseph Broadhurst

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