BC Family Law Significantly Unfair And BC Unequal Property Division
The new BC Family Law Act was designed to have simpler and clearer rules to allow people to reach a compromise in their family law disputes. Our MacLean Law lawyers can help you resolve family property matters quickly and fairly.
One of the new rules for BC property division has created a higher threshold for unequal division of family property. Our BC family and excluded property division rules changed on March 18, 2013 and judges and lawyers are still figuring out how the new property division law works.
New Case Explains BC Family Law Significantly Unfair Test and How It Relates To Unequal Property Division
The critically important BC family property division decision of Remmem v. Remmem, 2014 BCSC 1552 dealt with what significant unfairness means and when will such significant unfairness justify unequal division of family property. The case also dealt with how excluded property is treated when used to buy or acquire property registered in joint names.
When Does Bc Family Law Significantly Unfair Lead to One Spouse Getting More Than Half the Family Property?
There is a significant difference in how the courts dealt with unequal division of family assets under our old legislation and how unequal division is treated under our new B.C Family Law Act. The change in the test was deliberate. The test is much tougher today than in the past when people routinely sought more than half of the BC family property upon relationship breakdown. The hope is by limiting cases where unequal division occur more cases will settle faster because the rules will be more certain.
As outlined in the B.C Ministry of Justice “The Family Law Act Explained” the new test is:
Section 95 Unequal Division By Court Order
- Section 95 sets out the factors for the Supreme Court to consider in ordering an unequal division of family property, family debt or both.
- It limits judges’ discretion to divide family property unequally between spouses
- The section changes the threshold for dividing family property unequally from whether it would be “unfair” not to do so to whether it would be “significantly unfair” not to do so.
- It is intended to create a higher threshold and make the test for unequal division stricter.
- Judges still have some flexibility to take into account a spouse’s unique circumstances and divide property unequally, but may only do so based on a more limited basis than under the Family Relations Act.
- This section allows a court to use an unequal division of property to compensate for situations where spousal support is insufficient to meet the spousal support objectives. The Family Relations Act was silent on how property division should interact with spousal support; while property division and spousal support are separate issues in law, in practice, they overlap.
Key Court Case Sets the Bar High For Unequal Division of Family Property When Applying Significantly Unfair Test
In the August 2014 decision Remmem v. Remmem, 2014 BCSC 1552, Mr. Justice Butler held that BC’s new Family Law Act intends equal division of family property to prevail in all but the most unusual circumstances. Unequal division of family property occurs only where significant unfairness would occur if property is divided equally between the spouses:
[43] It is only at the very end of the exercise that equitable considerations come into play pursuant to s. 95. After determining the full extent of the family property, the court must go through the notional exercise of dividing that property equally. The court must consider if equal division would be “significantly unfair”. If it would, then it is possible to order an unequal division.
[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 theFLA 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).
Stricter Test For Unequal Division Will Reduce Uncertainty For Family Property Division and Encourage Settlement
It is clear that the new act is designed to help parties settle their cases through negotiation, mediation and arbitration rather than proceeding to court. By making the exception for departing from the equal division of family property a stringent test, parties will no longer be tempted to routinely claim unequal division of family property in their favour when no unusual circumstances exist. The hope is that this will encourage people to save time and money on family law disputes but instead focus on moving forward with their lives.
If you have a family property dispute and have questions about whether your case meets the test for unequal division of assets based on significant unfairness, our skilled and experienced family law lawyers would be pleased to assist you.
