Division of Family Property and Debt

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In many ways the division of family property and debt following a separation can be both simple and complex.  It can be a simple process as the division of family property and debt is governed by our Family Law Act and the framework of the legislation is based on the concept that assets and debt accumulated during a marriage or relationship is prima facie divided equally upon separation or divorce.  However, some assets that are accumulated during the relationship such as through an inheritance or gift are considered ‘excluded property’ that is not subject to a division with a spouse.  Likewise, assets brought into a marriage or relationship by one spouse are also excluded property and only the increase in value of the asset during the relationship is divided with a spouse.

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Determining the Date of Separation

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Determining the date of separation for both married and common law couples can be very important in any family law case.  For example, the date of separation is used to determine when a divorce order can be obtained on the grounds of living separate and apart for at least one year.  As another example, a common law spouse has only two years from the date of separation to pursue a spousal support claim (Section 198 (2) of the Family Law Act).  Similarly, a common law spouse that wants to pursue a claim for property division under the Family Law Act must commence a court proceeding within two years from the date of separation. 

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Views of Children in Custody & Access Cases

In determining the appropriate parenting arrangement, the courts are specifically directed by our legislation to consider only the best interests of children (Section 16(8) of the Divorce Act).  In determining what is in the best interests of a child, all of the child’s needs and circumstances must be considered by the court, including a number of factors set out in Section 37 of the Family Law Act.  These factors include the child’s views, unless it would inappropriate to consider them.

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Separation Agreement

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We are often asked by clients at an initial consultation to obtain for them a “legal separation”.  Usually this means the parties want to enter into a written separation agreement that resolves all issues arising from the breakdown of their marriage or relationship.  Both married and common law couples can obtain a separation agreement which is basically a contract between the spouses that resolves the issues such as parenting arrangements, child support, spousal support, division of assets and debts. 

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Child Support

Both the Supreme Court and the Provincial Court of British Columbia can make orders for child support.  Generally child support is paid until the age of majority, which in British Columbia is until age 19.  However, child support may still be payable after a child’s 19th birthday if that child by reason of illness, disability or other cause still needs financial assistance from a parent.

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