Surrey BC Family Property Reapportionment cases can be tricky and in some cases aggravating. You need a top Surrey BC Family Property Reapportionment lawyer to ensure the best possible settlement or court outcome. The highly experienced Surrey family property division lawyers at MacLean Law will ensure your rights are protected and your claims are vigorously advanced. Call us across BC toll free at 1-877-602-9900. Our BC Family Property Reapportionment lawyers act across BC from our 4 offices in Dawson Creek/Fort St John, Kelowna, Vancouver and Surrey BC.
What is Unequal Division or Reapportionment of Family Property?
What happens in a Surrey BC Family Property Reapportionment case in a short marriage? How does someone get more than a half share and when in a Surrey BC Family Property Reapportionment dispute. Does the new BC Family Law Act family property division law allow the court to measure each parties respective financial contributions? Does a breadwinner who pays the mortgage get more credit than the mother who raises their infant children? Should the courts do a forensic analysis of who did more during the marriage to acquire assets? What happens to a gain made on a home brought into marriage by one spouse that increased in value due to rising real estate prices and by the reduced mortgage that was paid down during the marriage? BC unequal family property division cases also called BC Family Property Reapportionment cases need a skilled approach from a top BC family lawyer.
As we’ll see from the detailed analysis below the court will presume equal contribution from both spouses and not dissect who paid more or who did more chores. In the case below the marriage was only 4 and 1/2 years and the separation was 5 years and so the husband who brought the house into the relationship as for a 75/25 division in his favour. The court did give him 60/40 and here is why with the key parts bolded for ease of reference.
In the new case of A.M.D. v. K.R.J., 2015 BCSC 1539 the court reviewed the law to apply to a BC unequal family property division or Surrey BC Family Property Reapportionment case. Here is what the judge decided in coming to a 60/40 split in the husband’s favour.
C: Reapportionment
[58] The respondent asks the court to reapportion the above family assets in his favour so that the claimant would receive only 25% of their value. He argues that an equal division of the Home and the shares is significantly unfair, pursuant to s. 95 of the FLA, for the following reasons:
(a) All property was brought into the relationship by the respondent.
(b) The respondent paid the mortgage on the Home before and during the relationship.
(c) The parties’ relationship lasted for only four years and three months.
(d) The claimant has not contributed to the maintenance of the Home during the five years the parties have been separated.
(e) The shares were acquired through the respondent’s employment and were only maintained after separation because of his continued employment.
[59] The respondent relies on case law under the Family Relations Act, R.S.B.C. 1996, c. 128 [FRA], in which property was reapportioned to the husband because of the short duration of the marriage and the fact that he brought the major portion of the family assets into the marriage: Zaurrini v. Zaurrini (1981), 33 B.C.L.R. 15 (B.C.C.A.); Jasinski v. Jasinski, 2006 BCSC 878 at para. 47; B.D.M. v. A.E.M., 2014 BCSC 453 at para. 235; and Li. v. Long, 2014 BCSC 48 at para. 160.
[60] These cases are distinguishable. First, I note that the threshold for reapportionment was lower under the FRA (“unfair”) than under the FLA (“significantly unfair”). The legislature has raised the bar to justify an unequal distribution; it is necessary to find that the unfairness is “compelling” or “meaningful” having regard to the s. 95(2) factors: Remmen v. Remmen, 2014 BCSC 1552 at para. 44. Cases under the former “unfair” threshold are of limited assistance: Walburger v. Lindsay, 2015 BCSC 341 at para. 91.
[61] Second, the property regime under the FRA did not exclude property acquired by a spouse before the relationship between the spouses began as the FLA now explicitly does in s. 85. The only remedy for excluding such property was through reapportionment under s. 65 of the FRA. In the new framework, such property is already excluded, except for its increase in value during the relationship until the time of trial. Justice Baker responded to a similar argument in Jaszczewska v. Kostanski, 2015 BCSC 727 at para. 144:
[144] I begin with the submission made by Counsel for Mr. K that equal division would be significantly unfair because Mr. K brought assets into the relationship while Ms. J did not. In my view, this factor can be given little or no weight in the circumstances of this case. As I stated in the preceding paragraph, this is not a case where the relationship was of very short duration. In any event, the FLA established a new regime for identifying and valuing family assets. It contains provisions excluding from family property the assets each party brings into the relationship if those assets still exist when the relationship ends; or the value of the pre-relationship property can be traced into other family property. I have already determined that $60,000 paid by Mr. K for the down-payment on the Kildonan property is excluded property. Given the new regime for excluded property, I do not think the Legislature intended that mere disparity in wealth at commencement of the relationship would generally justify unequal division of family property at the end of the relationship. [Emphasis added.]
[62] In any event, I find that the respondent did not bring substantial assets into this relationship. In Jasinski, for example, the husband brought assets to the marriage valued at $350,000 (para. 50). In Li, it was millions (para. 147). In contrast, the respondent bought the Home with a $5,000 down payment and had contributed about another $1,000 to the principal of the mortgage by the time the parties began cohabitating.
[63] Having distinguished the cases relied upon by the respondent, I will consider the relevant s. 95(2) factors.
[64] I note that the factors for consideration under reapportionment have changed in the new legislation. In particular, s. 65(1) of the FRA specifically invited the court to consider circumstances relating to the acquisition, preservation, maintenance or improvement of family assets. These factors are not included in s. 95 of the FLA. It could be argued that the parties’ relative contributions should be considered under s. 95(1)(i) as “any other factor … that may lead to significant unfairness”, but in my view, the court cannot ignore the clear language in s. 81 which states that “spouses are both entitled to family property and responsible for family debt, regardless of their use or contribution.”
[65] Justice Baker reviewed recent FLA case law on this issue in Jaszczewska at paras. 165 – 170, noting that in some cases the court did consider unequal contribution, among other factors, to warrant unequal division or as insufficient reason to establish “significant unfairness”. In Jaszczewska, after determining that the legislature would have specifically said so if they intended unequal contribution to remain a significant factor justifying unequal division of family property under s. 95 (para. 163), Baker J. found persuasive reasons to consider this factor since the “the work Mr. K has done to develop the Maplewood Living project; and the time he has spent on the construction of the Kildonan property has meant that he gave up the opportunity to earn income in other ways” (para. 171).
[66] Respectfully, I agree with Justice Fleming in Nearing v. Sauer, 2015 BCSC 58 at para. 141:
[141] Section 95(2) does not appear to allow for the wide ranging examination of each spouse’s contribution to the accumulation of family assets and their respective capacities that occurred pursuant to s. 65(1)(f). Instead the court may consider a spouse’s contribution to the career or career potential of the other spouse under s. 95(2)(c) or a spouse’s detrimental impact on to the value of family property or potential family property under s. 95(2)(g) which appears focused on the spouse’s direct actions vis-à-vis the value of family property. I interpret the words “spouse’s contribution” in s. 95(2)(c) as including the full spectrum of all levels of contribution from one spouse negatively impacting on the other spouse’s career to greatly enhancing the career or career potential of the other spouse.
[67] I note that, in any case, jurisprudence under the FRA did not consider the extent to which spouses contribute financially to household expenses as a basis for reapportionment pursuant to s. 65: Jaszczewska at para. 140. As Justice Dohm stated in Johnstone v. Johnstone (1982), 33 B.C.L.R. 368 at 388 – 389 (S.C.): “If spouses each contribute positively to the development of the family asset s. 51(f) will not apply. If, on the other hand, one spouse tries to build up the assets and the other to acquire “experiences” this must be a factor to consider whether or not it would be unfair to divide the assets equally.”
[68] In the circumstances of this case, I do not take into account the parties’ financial contribution to the family property during the relationship as s. 81 is clear that each spouse has a right to an undivided half interest in all family property regardless of their respective use or contribution. Moreover, the evidence was uncontroverted that the claimant had the responsibility for maintaining the home by doing chores, etc. during the relationship, and, therefore, contributed positively to the building up of the asset.
[69] I agree that the parties’ relationship of four years and three months was of short duration, which supports an unequal division. I find this to be a strong factor in the respondent’s favour.
[70] On the other hand, it was the claimant who contributed to the respondent’s career by caring for the children and the household during the relationship and, since separation, she has continued to do so by arranging flexible parenting times to accommodate his rising career.
[71] The respondent asks me to consider that the claimant has not contributed to the Home or the RRSPs and shares during the five years of separation. This must be balanced against the fact that the respondent has had exclusive use of the Home during these many years while the claimant has been paying rent for alternative accommodations for her and the children. I further note that the only shares to which the claimant is entitled are those received during the relationship, not since separation. I do not accept the respondent’s argument that his continued employment since separation has secured the value of the shares received during the relationship in such a way that they should be reapportioned in his favour.
[72] Having considered all of the relevant factors in s. 95(2), I do find it would be significantly unfair to the respondent to equally divide the family property but I do not agree that a 75% share in his favour is fair. Instead, I find he is entitled to 60% and the claimant 40%. The strongest factor in favour of reapportionment is the length of the marriage. However, I also consider that the respondent bore the risk alone of the value of the Home decreasing since the relationship began and that the claimant probably would not have been in the financial position to acquire such an asset without the respondent’s initial investment.
If you are pursuing or defending a BC Family Property Reapportionment or unequal family property division case it pays to talk with us right at the outset to ensure a cogent and persuasive strategy is developed by our skilled family lawyers. Call us toll free at 1-877-602-9900. You’ll be glad you did.
