Our Surrey significant unfairness family lawyers assist our clients in resolving family property division and excluded property division ( assets acquired before the relationship started or gifts or inheritances and some other property received by one spouse only during the marriage) cases. The default scheme for family property division is to divide the family property equally but our Family Law Act does allow for unequal division to one spouse if they can prove it would be significantly unfair to divide the family assets equally.
Our Surrey significant unfairness family lawyers have just reviewed the latest case on this topic. In the BC Supreme Court decision Nearing v. Sauer the court reviewed the rules and binding cases and came to a conclusion that it would be significantly unfair to divide one spouse’s pension.
[92] The Court may order an unequal division of family property and/or family debt if it would be significantly unfair to divide it equally, or in the case of pension benefits, to divide them as required by Part 6, based on a new set of criteria found in s. 95(2) and (3) including the following:
(2) For the purposes of subsection (1), the Supreme Court may consider one or more of the following:
(a) the duration of the relationship between the spouses;
(c) a spouse’s contribution to the career or career potential of the other spouse;
(f) whether a spouse, after the date of separation, caused a significant decrease or increase in the value of family property or family debt beyond market trends;
(g) the fact that a spouse, other than a spouse acting in good faith,
(i) substantially reduced the value of family property, or
(ii) disposed of, transferred or converted property that is or would have been family property, or exchanged property that is or would have been family property into another form, causing the other spouse’s interest in the property or family property to be defeated or adversely affected;
(i) any other factor, other than the consideration referred to in subsection (3), that may lead to significant unfairness.
(3) The Supreme Court may consider also the extent to which the financial means and earning capacity of a spouse have been affected by the responsibilities and other circumstances of the relationship between the spouses if, on making a determination respecting spousal support, the objectives of spousal support under section 161 [objectives of spousal support] have not been met.
[93] In L.G. v. R.G., 2013 BCSC 983, Mr. Justice Brown considered the meaning of the “significantly unfair” standard set out in s. 95(2). He concluded as follows:
[71] In my view, the term ‘significantly unfair’ in s. 95(1) of the FLA essentially is a caution against a departure from the default of equal division in an attempt to achieve ‘perfect fairness’. Only when an equal division brings consequences sufficiently weighty to render an equal division unjust or unreasonable should a judge[‘s] order depart from the default equal division.
[94] In Remmem v. Remmem, 2014 BCSC 1552, with reference to s. 95(2), Mr. Justice Butler found that the word “significant” is understood to mean more than a regular impact – something weighty, meaningful or compelling. He then concluded as follows:
[44] … 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 unfairness is compelling or meaningful having regard to the factors set out in s. 95(2).
[95] Mr. Justice Butler also held that in order to determine if it would be significantly unfair to divide the family property equally, the court must first notionally divide the family property, taking into account the exclusions as provided for in the FLA (para. 47).
[135] Turning to the value of the respondent’s interest in the claimant’s public pension, given that I have found the claimant is likely to continue working until at least age 60, and the separation date is August 15, 2009, I conclude the value of the respondent’s 18.6% interest is either $82,788.60 (pre-tax) or $62,086.80 (after tax). Based on the inference that the respondent continues to own undisclosed financial assets of not less than $225,000, allowing the claimant to keep the whole of her pension does not necessarily require an unequal division of family property in her favour.
[136] In the event that I am incorrect in so concluding, arising from the required application of the two legislative regimes or because the respondent’s undisclosed assets are excluded property under the FLA, I will also consider whether it would be significantly unfair to the claimant to divide her pension benefits as required by Part 6, according to the criteria set out in s. 95(2).
[150] I conclude that the respondent made essentially no contribution to the claimant’s career or career potential during their relationship except for providing limited care to the children while she attend law-related conferences. At the same time, the claimant urged the respondent to seek full time employment and, given her role in caring for the children and the household, he was entirely free to do so. His preference, however, was to pursue his interest in art, and teaching art was a part of his vision of an artist’s lifestyle.
[151] In the circumstances, on the grounds of s. 95(2)(c), I find it would be significantly unfair, to divide the claimant’s pension benefits as required by s. 115, bearing in mind the meaning given to the threshold of significant unfairness in L.G. and Remmen.
While the threshold is high, a number of BC cases have permitted unequal decision. These unequal property division cases are complex and you should promptly hire a good lawyer to guide you. Our experienced Surrey significant unfairness family lawyers can be reached 604- 576-5400.
