Our senior Surrey family lawyers are constantly updating our clients on new developments in Surrey family property division. There are two types of property under our new property division regime “family property” that is normally shared equally and “excluded property which normally has only the gain made on it during the relationship shared equally. You can meet with our top rated Surrey family lawyers at our South Surrey office at the corner of Highway 10 and 152nd. Call us at 604-576-5400. Our Surrey family lawyers are fluent in Punjabi, Cantonese, Hindi, Mandarin as well as English.
Our Surrey family lawyers are aware that under certain circumstances even excluded property might be shared. Our Surrey family lawyers explain to our clients that the new test to divide “excluded property” is rigorous but not impossible to meet. A recent BC Supreme Court case summarized the law on how a person might obtain a share of excluded property and refers to the test set out in the new Family Law Act for division of excluded property:
[63] Under s. 96(b), the court must not order the division of excluded property unless it would be significantly unfair not to do so in consideration of the duration of the relationship and the spouse’s direct contribution to the property.
[64] In V.J.F. v. S.K.W., 2015 BCSC 593 at para. 79, Mr. Justice Walker found the comments of the court on s. 95 of the Family Law Act in Remmem v. Remmem, 2014 BCSC 1552, instructive for the approach to be taken for s. 96. In Remmem at para. 44, Mr. Justice Butler provided;
[44] … 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[.] …
[65] In V.F.J., Walker J. went on to find:
[83] The FLA has not set the bar so high that finding significant unfairness is next to impossible. For example, in Cabezas v. Maxim, 2014 BCSC 767, the Court found that significant unfairness would result from the unequal division of the claimant’s purported excluded property given the respondent’s contributions to the maintenance of the property, her decision to undertake liability on the mortgage, her greater contribution towards expenses, and the length of their cohabitation of 6.5 years[.] …
Ultimately the court applied this test for “significant unfairness” to the wife’s claim and denied her claim to divide excluded property as follows:
[66] There was no evidence of Ms. Szablewska contributing directly to the preservation, maintenance, improvement, operation, or management of this property. This relationship was not lengthy. Having regard to the definition of “significantly unfair” as well as the factors under s. 96(b)(i) and (ii), Ms. Szablewska has not demonstrated that it would be significantly unfair for Mr. Staehli to retain Cedar Grove Estates as an excluded asset not subject to division. Further, any Cloudworks’ funds contributed to Cedar Grove Estates did not increase the value of the property during the course of the parties’ relationship.
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