Divorce is a federal responsibility and is governed by the Canada wide Divorce Act (1985). This act not only governs divorce but also child custody, access, spousal and child maintenance. An important aspect of the federal legislation are the new Family Support Guidelines which sets specific amounts of child maintenance in accordance with the payor's gross income. The recipient's income is generally not relevant.

The province of British Columbia in addition to having concurrent jurisdiction in custody, access and maintenance, governs the division of marital property. Note that the Family Relations Act and its provisions relating to the division of family assets do not apply to common-law relationships. Claims relating to assets in such relationships are governed by the common law of trusts.

Divorce proceedings are usually consolidated with custody, access, maintenance and issues of property division. These latter issues can be dealt with right away upon filing, while the final order of divorce, is in most cases, dependent on a formal one year separation.

Property division in B.C. starts with the premise that married couples are each entitled to one half of the assets upon divorce. There are provisions for re-apportionment favouring one spouse over the other but these generally only apply to short term marriages (5 years or less) and where one spouse has brought significantly more assets into the marriage. Inheritances may also qualify for exclusion. Division is generally more complex if a family business is involved. If one spouse contributes to the business, either with unpaid labour or provision of family funds then a court may find that the business is a family asset, notwithstanding that the spouse is not an actual legal owner.

Legal separation does not occur automatically when the parties separate. You must either be a party to a written separation agreement or obtain a legal declaration from the Court. The former requires agreement between the spouses and the drafting and execution of a formal agreement. The latter is obtained from the court upon application. Legal separation is important as it severs joint tenancies ensuring that property rights to not pass to the other spouse in the event of death.

If you separate and have significant assets it is important that you not only obtain a legal separation but also an order freezing family assets to prevent their disposition by the other party. Unfortunately clients have come to me after substantial family assets have been depleted by the other spouse with no prospect of recovery or compensation. Don't let that happen to you. Remember your first visit with Kahle & Co. is free.