Question: Upon Separation What are My Entitlements to Assets?
Answer: In British Columbia, there is not as big a distinction in the law as it applies to married and unmarried couples and same sex partners. Subject to a written agreement to the contrary in the proper form known as a Family Law Agreement, married couples, including those of the same sex and hetro-sexual spouses, are entitled to share in 50% of the value of all family assets as determined by the Family Law Act.
For those who are co-habitating and not married or are co-habitating in a same sex relationship they have the same rights as if they were married spouses if they have been living together for at least two years before they separate. For others not within these definitions there is no Statute, which guarantees any entitlement to them. Instead, they must rely on the concept of common law gift and trust claims to assert and prove an entitlement. There is no guarantee they can do this easily.
Unlike other provinces in Canada, British Columbia has what is known as an in rem property system or one that gives each party (referring to married people of the same sex) an entitlement as a family property asset to a ½ interest in every property they own or in which they have a beneficial interest (someone else is the registered owner but is holding the equity for the spouse) in their name or their spouses name or to which their spouse is beneficially entitled on the date the parties separate which is not defined to be an excluded asset by the act. With regard to excluded property spouses will share equally any increase in value of the excluded property. If there is no increase in the value of excluded property there is nothing to share. The onus of proving an asset is excluded is on the spouses stating this. Also if equity is received by a spouse from something which would have been a family asset is placed in another asset which would be excluded that asset becomes a family asset upon separation.
An important note if you are unmarried and in a common law relationship your entitlement to make a claim to family assets is limited to two years from the date of separation and two years from the date of divorce if you were married. Therefore, you should act quickly upon separation to contact a family lawyer like the ones at Dubas and Company to pursue your claims and understand what they can be.