How to Protect Your Rights After Separation in BC

If you have separated from your spouse or are considering separation, you should consider how you will consider your rights to the family property after you separate, especially if the family property is only in your spouse’s name. In this article, I will explain some of the legal resources available to protect your rights after your separation.

What is family property?

A family’s belongings fall into two categories after two spouses separate: family property and excluded property.

The Family Law Act (the “FLA”) defines family property as property that is owned by one or both of the spouses or a beneficial interest of one of the spouses in a property.

However, the FLA excludes the following classes of properties from family property:

1) property acquired by one of the spouses before their relationship began;
2) inheritances to one of the spouses;
3) some lawsuit settlements and damage awards;
4) some beneficial interests that are held in trust for one of the spouses;
5) in some cases, money paid or payable under an insurance policy; and
6) any property that is obtained from the proceeds of sale or disposition of one of the of the properties mentioned in 1 – 5 above.

It is important to note that any increases in the value of excluded property after the relationship begins will be counted towards family property.

The following are some examples of family property:

1) The family home;
2) RRSPs;
3) Investments;
4) Bank accounts;
5) Insurance policies;
6) Pensions;
7) An interest in a business; and
8) The amount of any increase in the value of excluded property since the relationship started.

The following are some examples of excluded property:

1) Property you personally brought into your relationship;
2) Inheritances you received during your relationship;
3) Gifts you received during your relationship by someone other than your spouse;
4) Personal injury or settlement awards received during your relationship such as ICBC settlements, etc; and
5) Property held for you in a discretionary trust held by someone other than your spouse;

What can go wrong with family property after separation?

After two spouses’ relationship breaks down, they have to deal with splitting their family property in a fair and efficient manner between the two of them. The cheapest, fastest, and most efficient way to do this is to reach a formal agreement with the assistance of lawyers so that parties have the certainty of knowing they will be the persons making decisions about their own property. However, sometimes the two parties cannot reach an agreement. In those circumstances, they will have to resort to the courts to protect their rights.

In cases when the parties cannot reach an agreement, sometimes there is a risk that one of the spouses (“John”) will use the family property in a way that hurts the legal and financial interests of the other spouse (“Jane”). For example, John, whose name is on the title of the family home, can take out a second mortgage or refinance the existing mortgage to borrow money from the bank. John can then spend the money borrowed and not be able to pay it back. This will reduce the value remaining in the property (the equity) and hurt the financial interests of Jane at the time the properties are divided between the spouses.

The experienced lawyers at Pax Law Corporation know in what circumstances a spouse may be damaging the interests of their ex-spouse and can help you recognize those circumstances and take appropriate actions.

How do I protect my rights after separation?

There are different ways to protect your family property after separation from your spouse. You can go to court and seek a preliminary order (or interim relief) in the following forms:

1) An order for protection of property under section 91 of the FLA.
2) An injunction or Mareva injunction under the Supreme Court Family Rules, Rule 12-4.
3) A preservation order under Supreme Court Family Rules, Rule 12-1.
4) The appointment of a receiver (in situations where bankruptcy is a concern) under Supreme Court Rule 12-2.

You can also protect your assets by pursuing the following reliefs out of court:

1) Filing a certificate of pending litigation under the Land Title Act.
2) Applying for an entry on the title of the family home under the Land (Spouse Protection) Act.
3) Registering a caveat under the Land Title Act.

The lawyers at Pax Law can advise you about which of these solutions are most effective for your case, and assist you with implementing that solution quickly to prevent any further financial loss.


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