As Vancouver family lawyers and Fort St John family law and divorce lawyers, we are often asked what BC courts do in shorter marriages in British Columbia that end in divorce both with respect to British Columbia spousal support and BC family asset division. We are also frequently asked what kind of BC assets are divided at the end of a marriage?
We advise people that the test is- whether the assets were ordinarily used for a family purpose. If you have a specific question concerning BC family property division contact us as the courts have construed a family asset to include a wide variety of family property. Our BC family law lawyers can be reached toll-free throughout the province at 1 877 602 9900.
A recent British Columbia Court of Appeal decision applying the spousal support advisory guidelines and dealing with reapportionment of property in a seven-year marriage provide provides updated guidance in determining what is a short marriage for purposes of reapportionment of BC family assets and how it impacts on an award of entitlement and quantum of spousal support in British Columbia.
In the decision of Wang V. Poon [2008] B.C.J. No 2113 our British Columbia Court of Appeal dealt with a seven-year marriage with husband was 76 years old and his wife was 47 years of age some 30 years his junior. The husband brought the majority of assets into the marriage and his assets were used to purchase various condominiums.
The husband’s argument that a seven-year marriage was a short marriage for purposes of the Family Relations Act was rejected a number of assets were found to be family assets.
A savings plan in the name of the husband which was used by him to provide for him in his retirement but not an RRSP as we know
it in BC, was found not to be a family asset. Had it been in RRSP it would have been a statutorily defined family asset regardless of whether it was used for a family purpose. A variety of British Columbia bank accounts in the husband’s name which had been used to support the family were found to be family assets as they had clearly been ordinarily used for a family purpose. The husband had used these accounts to purchase the properties and since the trial judge had erred in concluding the bank accounts were not family assets the issue of whether the condominium purchased with the family asset bank accounts was remitted to the trial judge to make a new determination now that the error regarding the bank accounts being family assets had been corrected.
Of great interest in this case was the level of reapportionment in favour of the husband that was granted based on the Court’s
following analysis:
The trial judge found that it was appropriate to reapportion the home 90/10 in favour of Mr. Poon., Ms. Wang submits that, in making this order, the trial judge treated the marriage as if it were a short term marriage. Ms. Wang also submits that the trial judge wrongly emphasized Ms. Wang’s failure to contribute to the home as a significant factor in the reapportionment.
[46] It is evident from her reasons for judgment that the trial judge was well aware that there is a presumption of an equal division of family assets upon the happening of a triggering event and that the onus is on the person claiming a reapportionment to establish that an equal division of family assets would be unfair. In my view, the trial judge’s conclusion that Ms. Wang was entitled to only a 10% interest in the home involved a weighing of the factors under s. 65(1) in which she gave relatively little weight to the length of the marriage (s. 65(1)(a)), and substantially greater weight to the fact that the home was acquired prior to the marriage (s. 65(1)(c)) and that Mr. Poon alone had been responsible for the acquisition, preservation, maintenance, and improvement of the home (s. 65(1)(f)). She also considered the need for each spouse to become or remain economically independent and self-sufficient under s. 65(1)(e). She noted that Mr. Poon was then 76 years of age and not in a position to earn income in the future, and that Ms. Wang was considerably younger (47) with the potential to better herself through employment, with the assistance of a share of the home and spousal support.
[47] I have reviewed the authorities with respect to reapportionment. While each case must turn on its own facts, it is fair to say that a 90/10 reapportionment is usually reserved for short marriages where the spouse in whose favour reapportionment is made either brought the asset into the marriage and/or was primarily responsible for its growth, preservation, maintenance and/or improvement during the marriage.  The authorities referred to by the trial judge fall into that category. Depending on the weight the trial judge gives to each of the factors under s. 65(1), however, the authorities reveal a broad range within which trial judges may exercise their discretion.
[48] With some hesitation, I conclude that it would not be appropriate to interfere with the exercise of the trial judge’s discretion in awarding Ms. Wang only 10% of the home. While I would have given greater weight to the length
of the marriage and Ms. Wang’s relative need to become and remain economically self-sufficient, I conclude that, absent an error in law or in principle, which I am unable to find here, the standard of review does not justify this Court in
interfering with the result.On the issue of spousal support our Court of Appeal noted the trial judge made an award below the Spousal Support Advisory
Guidelines and increase the wife’s support for two more years as follows:
In the result, I conclude that the trial judge erred in making an award of spousal support which did not reflect her stated intention of providing more generous support for Ms. Wang than was reflected in the SSAG, with the result that the award did not properly take into account Ms. Wang’s precarious financial circumstances arising from the breakdown of the marriage.¬† Taking into account the relevant factors under the Divorce Act, S.C. 1985, c. 3 (2nd Supp.) and the FRA, the fact that Ms. Wang’s capital position will improve as a result of this decision, and the probability that she will be able to increase her hours of work in the future, I would make an order extending spousal support for a further two years at the rate of $600 per month up to and including September 1, 2012. The effect of this award is to increase the spousal support award by $14,400. I note that these payments are tax deductible to Mr. Poon and taxable in the hands of Ms. Wang.
