Vancouver Unequal Property Division Lawyers 604-602-9000
Our Vancouver Unequal Property Division Lawyers recognize in emotionally trying times like divorce and separation, we often try, for better or worse, to distill the relationship into numbers; asking questions such as “how much did I bring into the relationship?” or “how much did I contribute towards the relationship?” and “what is that really worth?”. A new case provides powerful new guidance that courts will not weigh the respective contributions of parties to family property during the relationship in all but the most extreme cases. Our Vancouver Unequal Property Division Lawyers explain this decision also points out that different rules apply to post separation efforts and contribution however.
Vancouver Unequal Property Division Lawyers
Our firm is Western Canada’s largest family law firm and we are repeat winners of Top Choice Awards Best Vancouver Family law Firm. We have 7 offices located across BC, Alberta and Manitoba in Vancouver, Surrey, Kelowna, Richmond, Fort St John and Winnipeg Manitoba. Soon we will assist family law clients in Toronto.
Our new Family Law Act has made the presumption of equal division of family property stronger and the factors for unequal division narrower in focus.
This issue has recently been considered by the BC Court of Appeal and has provided some helpful guidance regarding the division of family property, excluded property and the division of family debts when arguments are made for the unequal division of family property.
Our Vancouver Unequal Property Division Lawyers are expertly versed in the intricacies of the BC Family Law Act which governs these issues. Our Vancouver Unequal Property Division Lawyers will strategically guide you through the process of identifying which family assets and liabilities are most likely to be deemed included and excluded in your settlement and whether and how a court should take into account respective contributions to the family property. Below are some of the relevant sections of the Family Law Act that our Vancouver Unequal Property Division Lawyers will take into account.
Vancouver Unequal Property Division Lawyers Explain New Rules
[81] Subject to an agreement or order that provides otherwise and except as set out in this Part [Property Division] and Part 6 [Pension Division],
- spouses are both entitled to family property and responsible for family debt, regardless of their respective use or contribution, and
- on separation, each spouse has a right to an undivided half interest in all family property as a tenant in common, and is equally responsible for family debt.
[84] (1) Subject to section 85 [excluded property], family property is all real property and personal property as follows:
- on the date the spouses separate,
- property that is owned by at least one spouse, …
- after separation,
- property acquired by at least one spouse if the property is derived from property referred to in paragraph (a) (i)
[84] (2) Without limiting subsection (1), family property includes the following:
(g) the amount by which the value of excluded property has increased since the later of the date
- the relationship between the spouses began, or
- the excluded property was acquired.
[85] (1) The following is excluded from family property:
- property acquired by a spouse before the relationship between the spouses began;
[95] (1) The Supreme Court may order an unequal division of family property or family debt, or both, if it would be significantly unfair to
- equally divide family property or family debt, or both
[95] (2) For the purposes of subsection (1), the Supreme Court may consider one or more of the following:
- 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;
(i) any other factor, other than the consideration referred to in subsection (3) that may lead to significant unfairness.
The recent Court of Appeal case of Jaszczewska v Kostanski 2016 BCCA 286 involved a marriage like relationship for over ten years. In 2002, prior to the marriage like relationship, Mr. Kostanski had purchased a property which he renovated during the relationship. After the parties separated in 2012, and against Ms. Jaszczewska’s wishes, Mr. Kostanski obtained a construction loan and demolished the home and began to construct a new one. Additional family assets included the sale proceeds from a number of strata units in the sum of $435,750.
At the trial, the trial judge divided the total value of family property unequally in favor of Mr. Kostanski. The trial judge concluded that an equal division would be significantly unfair given Mr. Kostanski’s considerably “greater contribution” to the accumulation of family property. To accomplish unequal division, the trial judge allowed Mr. Kostanski to keep the $435,750 from the sale proceeds of the strata units and for the remaining family property to be divided equally. This resulted in Mr. Kostanski having to pay a lump sum to Ms. Jaszczewska. Both parties appealed; with Mr. Kostanski contending that he should be entitled to an unequal division of the family home and Ms. Jaszczewska contending that the sale proceeds from the strata units should be divided equally.
On appeal, the court considered the policy objectives of the Family Law Act that family property is to be divided equally unless it is “significantly unfair” rather than just “unfair” to do so. The language of the Legislature’s intent is clear from reading section 81 of the Family Law Act in which each spouse is presumptively entitled to an undivided half interest in all family property, regardless of their respective use or contribution.
Having regard to the facts, the court concluded that there was a clear case for reapportionment to Mr. Kostanski as the increase in the value of the family home had been significant, caused beyond market trends and been as a result of Mr. Kostanski’s efforts AFTER SEPARATION. The court concluded that dividing the family home equally would be “significantly unfair”. The court ordered a 70/30 division of the family home in Mr. Kostanski’s favour. With regard to the sale proceeds from the strata units, the court concluded that the trial judge had erred as the shares had been purchased during the relationship, using family property and was therefore family assets which should be divided equally.
This case illustrates that while there is a presumption of dividing family property equally, the courts are willing to depart from that view if the stringent test of “significantly unfairness” is met. Our Vancouver Unequal Property Division Lawyers advise you not to think blindly that you are entitled to more than half, or even half of the family property. Every case is different so it is important that you seek comprehensive legal advice from our Vancouver Unequal Property Division Lawyers. Our skilled team of Vancouver Unequal Property Division Lawyers will help you look at every detail of your case to make sure you get the best outcome possible – one that reflects exactly what you are worth.
