The Fort St John family property lawyers and Dawson Creek property division lawyers are often asked how Fort St John family property can be divided in cases where our clients have concerns that an equal division of family property is unfair. MacLean Law is BC’s largest family law firm and we have offices in Fort St John and Dawson Creek, Kelowna, Surrey and downtown Vancouver. Our new Family Law Act has established a new and stronger presumption in favour of equal division of Fort St John family property. However there are cases where the court will unequally divide family property. Market appreciation, post separation efforts, short relationships have all led to unequal division.
If you have questions about Fort St John family property and how it is divided call us at 250-262-5052.
In the 2015 decision of M.T. v. C.J.B. 2015 BCSC 1852 the court summarized the new and more stringent test to unequally divide property:
[113] Under s. 95(1) of the FLA, the court has discretion to order an unequal division of family property or debt, or both, if it would be “significantly unfair” to equally divide family property or debt. Section 95(2) sets out the factors for the court’s consideration in determining whether or not an equal division would be significantly unfair:
Unequal division by order
(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;
(b) the terms of any agreement between the spouses, other than an agreement described in section 93 (1) [setting aside agreements respecting property division];
(c) a spouse’s contribution to the career or career potential of the other spouse;
(d) whether family debt was incurred in the normal course of the relationship between the spouses;
(e) if the amount of family debt exceeds the value of family property, the ability of each spouse to pay a share of the family debt;
(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;
(h) a tax liability that may be incurred by a spouse as a result of a transfer or sale of property or as a result of an order;
(i) any other factor, other than the consideration referred to in subsection (3), that may lead to significant unfairness.
[114] In Jaszczewska v. Kostanski, Madam Justice Baker concisely summarized the law on the meaning of “significantly unfair”:
[166] In L.G. v. R.G., 2013 BCSC 983, as para. 71, Justice N. Brown stated:
In my view, the term “significantly unfair” in s. 95(1) of the FL 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 depart from the default equal division.
[167] Similar statements were made in Remmem v. Remmem. In that case, at para. 44, Justice Butler noted:
…The Concise Oxford English Dictionary defines “significant” as “extensive or 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).
[168] In Slavenova v. Ranguelov, 2015 BCSC 79, at para. 60, the court said:
The “significant unfairness” contemplated by s. 95 requires much more than differing financial contributions in a relationship. Exactly equal contribution is more likely exceptional than commonplace. The new regime under the FLA recognizes that partners will come to a relationship in differing circumstances and accounts for those in the concepts of “family property” and “excluded property”. The starting point in the division of property analysis already applies significant exclusions.
[115] Thus unfairness that attains the level “significant unfairness” warranting an unequal division of family property or debt under s. 95 must be compelling or meaningful, on a consideration of the factors set out s. 95(2). Unequal division will be justified where the court finds that the consequences of equal division would be so weighty as to produce an unjust or unreasonable result.
MacLean Law’s family lawyers are focused on helping you move successfully through relationship breakdown to post separation personal success.
