What are the rules in a BC family separation for BC family property division other than 50/50? What is reapportionment or unequal BC family property division? In BC, our Family Law Act mandates that all family property is to be divided equally regardless of effort or contribution unless it would be significantly unfair to share it 50/50. Reapportionment or unequal BC family property division means someone gets more than half of the family property but in BC the law is designed so 50/50 BC family property division is the norm and departures from this equal division will be rare.
What if someone earned more and paid more during the relationship don’t they get more than half?
In Hoppen v Kraviotis 2015 BCSC 779 the parties were married for 3 years and had one infant child. Does a short marriage mean the gain on property should be shared unequally when someone contributes more financially because they earned more? The answer is a strong no said the recent decision of Hoppen v. Kraviotis. Here are the key parts of the judgment:
[136] The claimant argues that the claimant earns a salary of approximately $86,000 per year and the respondent earns less, an equal division of family property would be a windfall to the respondent. Up to separation, the claimant at times, earned less than $86,000. Secondly, s. 81(a) of the FLA states that a spouse is entitled to family property and responsible for family debt “regardless of their respective use or contribution.”
[137] In order to be successful and reapportion family assets pursuant to s. 95, it must be significantly unfair. In Remmem, Butler J. said at para 44:
[44] The FLA provisions granting the court a discretion to order other than an equal division are very different from the provisions in the previous legislative scheme. Pursuant to s. 65(1) of the Family Relations Act, R.S.B.C. 1996, c. 128 (the “FRA“), courts had a discretion to divide family property in unequal shares if the court found that the division of property (pursuant to agreement or the provisions of the FRA) would be unfair having regard to the factors set out in that section. The first and obvious difference between the discretion given under the FRA and the discretion given in Part 5 of the FLA is that in order to exercise the discretion, it is no longer sufficient to find that a division of property is merely “unfair”. There must be a finding that the division of property pursuant to the statutory scheme is “significantly” unfair. The Concise Oxford English Dictionary defines “significant” as “extensive or important enough to merit attention.” Significantly is understood to mean more than a regular impact — something weighty, meaningful, or compelling. In other words, the legislature has raised the bar for a finding of unfairness to justify an unequal distribution. It is necessary to find that the unfairness is compelling or meaningful having regard to the factors set out in s. 95(2).
[138] The claimant and respondent have retained their excluded assets. There is nothing unfair about this division, let alone significantly unfair. The claimant has not demonstrated what is significantly unfair with the parties retaining their excluded assets and then dividing family property in accordance with the FLA.
[139] The claimant argues that I should take into consideration the length of the marriage, relying on a number of cases decided on under the Family Relations Act, R.S.B.C. 1996, c. 128. Those cases are of no consequence in this proceeding. In this family law proceeding, there is no need to consider the length of the marriage. The length of this marriage has nothing to do with the claimant and respondent’s excluded property, or the increase in value of the excluded assets, or the accumulation of family property. Family property mainly consists of RRSPs, some computer equipment, household items, an increase in value of the excluded property, and furnishings purchased after the marriage. I am not prepared to reapportion the family property.
[140] The excluded property must not be divided, except in certain circumstances: s. 96 of the FLA. Neither party argued that excluded property should be divided.
Lorne MacLean, QC heads our BC Family Property Division team and we have offices located across BC in Vancouver, Surrey, Kelowna and Fort St John. Call us toll free 1-877-602-9900 or fill out our request for consultation form and we will meet you on an urgent basis so you don’t spend sleepless nights worrying about your rights.
