Vancouver Surrey Unequal Division Family Property cases are now showing up with greater frequency after 4 years of BC Family Law Act legislation. Our highly ranked* Vancouver Surrey Unequal Division Family Property lawyers at Maclean Law applaud the recent BC Supreme Court decision of E.H.H. v C.L.M., 2017 BCSC 1299 , where Madam Justice Young provided a detailed summary of the strictness of the test to depart from equal division of family property, a list of cases that refused unequal division and finally a group of cases where unequal division was allowed.
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This section of family property division along with the tracing and excluded property provisions of the Family Law Act are technical and it pays to hire a skilled Vancouver Surrey Unequal Division Family Property lawyer to increase your chances of a just result.
Statutory Sections For Vancouver Surrey Unequal Division Family Property
[104] Section 81 of the FLA says that spouses are presumptively entitled to share in family property equally regardless of their respective use or contribution.
[105] The court has discretion to order an unequal division of family property or family debt if it would be significantly unfair to equally divide the family property or debt. Section 95(2) sets out the factors a court may consider in determining whether there should be an unequal division. It provides:
95 (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.
Case Law Says Test To Win Vancouver Surrey Unequal Division Family Property Is High
[106] I have the benefit of many decisions of our Court which have interpreted this section. In Remmem v. Remmem, 2014 BCSC 1552 (CanLII), Mr. Justice Butler compared s. 95 to the former s. 65 of the FRA and noted that it is no longer sufficient to find that the division of property is merely unfair. There must be a finding that the division of property pursuant to the statutory scheme is significantly unfair. “Significant” is understood to mean more than a regular impact. It is a weighty, meaningful or compelling impact. 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).
[107] In Nearing v. Sauer, 2015 BCSC 58 (CanLII) at para. 141, Fleming J. observed that s. 95(2) does not appear to allow for the wide range of examining each spouse’s contribution to the accumulation of family assets and their respective capacities as what used to occur under the FRA or constructive trust analysis.
[108] In Jaszczewskav. Kostanski, 2015 BCSC 727 (CanLII) [Jaszczewska trial level] at para. 162, Madam Justice Baker stated that the FLA intended exceptions to equal division would not become the norm. She said:
[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.
[109] Although there was a successful appeal in this case, the Court of Appeal supported Baker J.’s interpretation of the FLA. Madam Justice Baker also said that mere disparity in wealth at commencement of the relationship should not justify unequal division of family property at the end of the relationship: Jaszczewska trial level at para. 144.
[110] In Hamill v. Dunlop, 2016 BCSC 1337 (CanLII), following Jaszczewskatrial level, I found that unequal contribution was not sufficient to meet the threshold test for significant unfairness. In that case, the parties both contributed to the maintenance, renovation and upkeep of the family home in proportion to their incomes and the respondent contributed more labour to the renovation of the home.
[111] In Slavenova, Savage J. found that “significant unfairness” requires more than differing financial contributions and equal contribution is more likely exceptional than commonplace, stating at para. 60:
[60] … The new regime under the FLA recognizes the 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 implies significant exclusions.
But Test To Win Vancouver Surrey Unequal Division Family Property is Not Impossible
[112] However, the FLA has not set the bar so high that finding significant unfairness is next to impossible: V.J.F. v. S.K.W., 2015 BCSC 593 (CanLII) para 83; aff’d 2016 BCCA 186 (CanLII).
[113] There are several cases where the court has ordered an unequal division. I will set out a few here to establish the principle but the cases are very fact specific.
[114] In Cabezas v. Maxim, 2014 BCSC 767 (CanLII), Chief Justice Hinkson found a disproportionate contribution to family property by one party was sufficient to meet the threshold test for significant unfairness for dividing excluded property under s. 96.
[115] In Blair, Fleming J. concluded that in all the circumstances, including Mr. Blair’s role in causing a dramatic increase in revenues for the company and the value of the shares and Ms. Johnson’s lack of contribution to Mr. Blair’s business throughout the relationship, it would be significantly unfair to equally divide the increase in value in the shares.
[116] In A.L.M. v. N.J.O, 2015 BCSC 70 (CanLII), Mr. Justice Greyell found that a division of the claimant’s pension would be significantly unfair because she had to liquidate portions of her RRSP during the relationship to support the parties and she bore all the expense of raising their child including paying for her private education. In addition, the claimant worked two jobs to pay down family debt jointly incurred by the parties.
[117] In Walburger v. Lindsay, 2015 BCSC 341 (CanLII), Madam Justice Fitzpatrick reapportioned 100% of one property that the respondent had received as a gift from his mother given the claimant had not contributed anything to that property. The claimant did, however, receive 50% of the second property in which she lived with the respondent because she had made to its upkeep, albeit a very modest one.
[118] After this trial concluded, the respondent’s counsel has referred two cases to me where unequal divisions have been made. Those are Davie, which I referred to above, and Bamford v. Mulyati, 2017 BCSC 945 (CanLII) [Bamford]. In Bamford, the respondent absconded with the claimant’s deceased former wife’s jewelry and replaced it with dollar store jewelry. She contributed nothing in the marriage and did not disclose her income from her business or the value of her RRSPs. She fled to Jakarta and did not respond at all to the court proceedings. The claimant was a man in his 80’s who had been retired for 20 years. The respondent, a woman in her 50’s is believed to be running a business in Jakarta with undisclosed income. The facts of Bamford could not be more distinguishable. The respondent’s failure to disclose was but one factor considered by Madam Justice Morellato.
[119] Courts have been persuaded to grant unequal division of property or debt as a result of a spouse’s failure to disclose assets and debts. In Chang v. Xia, 2015 BCSC 1994 (CanLII), Fleming J. provides a helpful summary of the law at paras. 47 to 52. Madam Justice Fleming found that the respondent failed to disclose assets and dissipated assets and concluded that it would be significantly unfair to equally divide a student loan debt as a result.
