Surrey Equal Division of Family Property

[35]         Pursuant to s. 95 of the FLA, a court may order an unequal division of family property if it would be “significantly unfair” to divide it equally. In considering whether property should be divided unequally, a court may consider the list of factors set out in s. 95(2). The factors Mr. Hodel says have some relevance in this case include subsections: (a) duration of the relationship; (c) his contribution to her career potential; and (g) the fact that Ms. Adams took and disposed of family property. The list of factors in s. 95(2) also includes:

(i)   any other factor, other than the consideration referred to in subsection (3), that may lead to significant unfairness.

[36]         The court may also consider 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, but only if the order made respecting spousal support does not meet the objectives set out in s. 161 of the FLA. That is not an issue in this case, given my decision set out below that there is no basis for Ms. Adams’ spousal support claim.

[37]         The presumption under the FLA is that family property should be divided equally. The discretion to divide family property unequally is limited to those situations where it would be significantly unfair to divide the property equally. Courts considering this language have emphasized that the high standard of “significant unfairness” will only be met in limited situations where equal division would produce obvious or compelling unfairness. In L.G. v. R.G., 2013 BCSC 983 at para. 71, N. Brown J. cautioned that, “[o]nly when an equal division brings consequences sufficiently weighty to render an equal division unjust or unreasonable should a judge order depart from the default equal division.”

[38]         In Remmem v. Remmem, 2014 BCSC 1552 at para. 44, I noted that the test in s. 95 is more difficult to meet than the former test under the Family Relations Act:

[44]      … 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).

[39]         In Jaszczewska v. Kostanski, 2015 BCSC 727, Baker J. made similar observations. She noted at paras. 162 and 163 that just because the parties in a relationship make contributions which are different in nature, does not mean that there should be an unequal division of family property under the FLA:

[162]    In enacting the Family Law Act and adopting a new regime for allocating family property, the Legislature, in my view, intended that the exceptions to equal division would not become the norm.  In almost any spousal relationship the nature of the contributions made may be unequal in some sense, but in providing for the equal division of family property (after taking into account excluded property or a contribution to value derived from excluded property), the Legislature intended the general rule to prevail unless very persuasive reasons can be shown for a different result.

[163]    Had the Legislature intended unequal contribution to be a significant factor justifying unequal division of family property under s. 95, surely the Legislature would have specifically said so.

[40]         The circumstances of this case are not unusual. The parties had a relatively long-term relationship. While they maintained some separate bank accounts, they also maintained joint accounts and participated as partners in most financial matters. They purchased items for the Family Home together. They took out a number of loans jointly in order to acquire personal property. They owned the Family Home jointly and took out the mortgage together. They each contributed to the family finances through their employment earnings. Mr. Hodel earned more than Ms. Adams, but when Ms. Adams was trained to operate equipment, she obtained a position in which she earns an income similar to Mr. Hodel’s. Ms. Adams did more work on the farm and took some time off of work to do that.

[41]         If the RSPs of both parties are divided equally along with the other family property, the parties will leave the relationship in a position of financial equality. They both have good jobs and are of similar ages. They both have many working years left to build up retirement savings, although Mr. Hodel is a little younger and so has a slightly longer working life ahead of him. It would not be unfair, let alone significantly unfair, for them to leave the relationship in a position of financial equality. Nor would it be unfair that they equally benefit from their collective retirement savings. I arrive at that conclusion having taken into account the fact that Ms. Adams will receive an additional $10,000 from the equity in the Family Home. That does not alter the balance between the parties in a significant way.

[42]         None of the factors in s. 95(2) relied upon by Mr. Hodel support an unequal division of family property. Relationships of short duration may support an argument that family property should not be equally divided. Relationships of longer duration tend to support equal division of family property. Here, the parties were together for 12 years and had established what could be described as a joint family venture. The duration of their relationship and the way they managed their finances does not support an unequal division of family property.

[43]         The fact that Mr. Hodel contributed more to the family finances and provided financial support to Ms. Adams while she retrained is also not a reason to divide the family assets unequally. As noted in Jaszczewska, the contributions made by spouses in a relationship will often be different. Mr. Hodel’s support for Ms. Adams did not cause any detriment to his career or the parties’ accumulation of assets. The support did not result in Ms. Adams acquiring qualifications or skills which give her an ability to earn income which is superior to his.

[44]         The fact that Ms. Adams took or disposed of items of property (the skid steer and the flat deck trailer) is not a reason to divide family property unequally. She must account to Mr. Hodel for any property she retains, just as he must account to her for any property that he retains.

[45]         In summary, the amounts in the parties’ RSP accounts will be divided equally to the extent that those were accumulated during the relationship. On the basis of the evidence and argument before me, I am not able to determine those amounts with any precision. If the parties cannot agree on the amounts, that issue is referred to the Registrar for determination.

In a nutshell , unequal contributions will rarely meet the high threshold to depart from the presumption of Surrey Equal Division of Family Property.

Shorter marriages, gross disparity in contributions, long separations, cases where someone disposed of assets, cases where hidden assets are involved and cases where support cannot alleviate financial hardship remain exceptions that may apply to enable unequal division.

The teaching point for these  Surrey equal division of family property cases is to not blindly think you are entitled to more than half. Every case is different so call one of our  Surrey equal division of family property lawyers if you are going through a separation.

Our skilled team of family lawyers will help you settle you  Surrey equal division of family property case. We have 5 offices across BC located in Kelowna, Surrey, Vancouver, Richmond and Fort St John as well as a downtown Calgary office.