Unequal Family Property Contribution and how it impacts BC family property division is now governed by a stricter set of rules. These new rules focus far less on unequal contribution than ever before. In fact section 81 says spouses are both equally entitled to the family property and equally responsible for their family debt regardless of their respective use or contribution. So what must you show to get more than half the family property in BC? Our Top rated lawyers help you understand this key principle.
The 2013 BC Family Law Act changed the threshold for dividing family property unequally from whether it would be “unfair” not to do so to whether it would be “significantly unfair” not to do so. It is intended to create a higher threshold and make the test for unequal division stricter. The test was designed to help spouses promptly settle their family cases based on clear rules.
To Win Unequal Division, Read The Following
To win a case involving an unequal contribution to family expenses and debts you must prove it is significantly unfair to divide family property equally AND TO DO THAT you will need to prove that your greater contributions have involved marked, prolonged, and intentional or unexplained disparities in contribution to family debts or expenses.
A New Case
A new case from our BC Court of Appeal, Khan v. Gilbert explains the new narrow test for unequally divided family property and why exactly equal financial contributions in a relationship will most often be the exception. Weighing the value of childcare care responsibilities against the payment of bills and other arguments regarding who did more in a marriage are designed to be avoided by the new Act.
[27] As noted in Jaszczewska, the principle of relative contribution found in s. 65(1)(f) of the former Family Relations Act, R.S.B.C. 1996, c. 128,permitted the court to consider, in dividing property, circumstances relating to the acquisition, preservation, maintenance, improvement or use of property. In contrast, s. 95(2) of the Family Law Act “refers rather narrowly to career contributions (95(2)(c)) and to post-separation increases in value beyond market trends caused by one spouse (95(2)(f))” (Jaszczewska at para. 43). In Jaszczewska, the court found that although discretion to reapportion remained, the Legislature intended to limit and constrain the exercise of that discretion:
[44] …. in enacting s. 95(2)(i) the Legislature recognized that there may be factors other than those listed that could ground significant unfairness. Hence, while the Legislature intended to limit and constrain the exercise of judicial discretion to depart from equal division, it did not provide a closed list of factors and it did not eliminate the discretion. Accordingly, in my view, one cannot read the FLA as abolishing unequal contribution as a factor that may be relevant to reapportionment, although the circumstances in which it may be considered and relied on are intended to be much constrained.
[Emphasis added.]
I Paid More For The Family Home So I get a Bigger Share Right? Answer: Only Rarely
[28] It is apparent from the reasons for judgment and the record that the judge placed a great deal of emphasis on the husband’s failure to financially contribute to the relationship on an equal footing with the wife. The judge noted that throughout the relationship the wife earned a significantly higher salary than the husband and therefore paid more than half of the expenses. As quoted above, he referred to the husband’s lower income, his failure to pay for “his share of expenses” and found him to be a “drag on the family economy”. The judge also found it significant that the husband did not contribute equally to housekeeping, although his contributions through upkeep and renovations were noted.
[29] In my view, and with great respect, the judge erred in principle in assuming that if the husband did not contribute 50% to the financial and housekeeping efforts during the relationship, it would be significantly unfair to apply the presumption of an equal division of property.
[30] In addition, a 15% share of family property does not reflect the husband’s percentage contribution to family expenses on the facts found by the judge — even if that approach could be justified. The wife testified that the husband paid $1,500 into the joint account which she described as his share of the bills, including the mortgage payment. She also gave evidence that their monthly expenses came to $3,000 to $4,000, but even using these figures the husband’s financial contribution for much of the marriage was in the range of one-third to one-half of their expenses.
BC Court of Appeal Reconfirms The New Strict Test For Unequal Division Of Family Property
[31] In Slavenova v. Ranguelov, 2015 BCSC 79, Justice Savage (as he then was) said:
[60] 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.
[Emphasis added.]
[32] Cases in which unequal contribution to family expenses and burdens were found to make it significantly unfair to divide family property equally have involved marked, prolonged, and intentional or unexplained disparities in contribution to family burdens: Nanara v. Nanara, 2017 BCSC 1447; E.H.H. v. C.L.M., 2017 BCSC 1299.
[33] In Nanara, the trial judge awarded 60% of family property to the claimant wife based on the respondent husband’s unequal contribution, and lack of financial disclosure. In that case, the parties had been married for 33 years, and had four grown children. Throughout the relationship, the wife worked multiple full-time, low-paying jobs and regularly worked 16 hour days. After separation, she maintained both family residences and continued to support one son who was attending medical school. In contrast, the husband had been continually underemployed throughout the relationship without explanation, and made no contributions to the residences or their son’s education after separation.
[34] In E.H.H., the judge awarded the respondent wife 70% of the increase in value of the family home.
[35] The judge found the husband had hidden his income from his wife throughout the relationship. She found the wife had $318,137 available to her throughout the relationship and had contributed $301,162 to the maintenance, preservation and improvement of the family home. In contrast, the husband had funds available to him of $610,803, and had contributed only $188,269. In addition, he had taken unauthorized sums from the wife without her knowledge, by using her online banking password.
[36] In summary on this issue, in my respectful view the judge erred in principle in his approach to the reapportionment of family property, basing it on a dollar for dollar comparison of contribution to expenses which does not reflect the nature of marriage as a family venture. In most marriages, one spouse will earn more than another and therefore contribute more to the family finances. As noted at para. 43 of Jaszczewska, allowing relative contribution to become a regular consideration in the context of s. 95 would create uncertainty and complexity, contrary to the legislative objectives underlying the Family Law Act division of property regime.
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