Unequal family property division means one spouse receives more than the normal 50/50 division of family property. Section 95 of the BC Family Law Act allows for unequal division if equal division would be significantly unfair. But how does unequal family property division occur and how often?
A key unequal family property division case was released this year by our highest court and a new analysis on the impact of unequal contributions during spousal relationships. The decision points out the test to defeat the presumption of equal division of family property is higher than ever. Singh was cited again recently in a case of He v. Gou where an unequal division of a home was made entirely in favor of the wife because of unequal contributions during the relationship, the nondisclosure of the husband, and his inappropriate behaviour.
In Singh v. Singh, 2020 BCCA 21, Justice Garson, after reviewing Justice Harris’s extensive analysis of s. 95 of the FLA, summarized matters and then turned the Court’s focus to analyze the meaning of s. 95(2)(i) of the FLA in its context.
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Justice Garson’s unequal family property division summary and analysis reads as follows:
[133] In V.J.F. v. S.K.W., 2016 BCCA 186, Justice Newbury described s. 95 as requiring a high threshold of “significant unfairness” to depart from equal division: at para. 81. Other cases have reached similar conclusions about the high threshold necessary to reapportion assets under s. 95. In Khan v. Gilbert, 2019 BCCA 80, for example, Justice Fenlon noted that cases in which unequal contribution was found to reach the significantly unfair threshold have involved marked, prolonged, and intentional or unexplained disparities in contribution to family burdens: at para. 32.
[134] In summary, it is clear that the Legislature intended the general rule of equal division to prevail unless persuasive reasons can be shown for a different result: Jaszczewska [v. Kostanski, 2016 BCCA 286] at para. 41. Reapportionment will require something objectively unjust, unreasonable, or unfair in some important or substantial sense. This is in contrast to the previous legislationwhere courts had discretion under s. 65 to reapportion property or debt where it would be simply “unfair” not to do so. The threshold for “significant unfairness” is high. There must be a real sense of injustice that would permeate the result if the court did not deviate from the presumptive equal division.
[135] Keeping the foregoing in mind, I turn to consider the interpretation of s. 95(2)(i) and whether the factors the judge relied on properly fall within its scope.
[136] Section 95(2)(i) is a general term, allowing consideration of “any other factor … that may lead to significant unfairness.” As a general term preceded by a list of specific items, the rule of statutory interpretation known as ejusdem generis (“of the same kind”), or the limited class rule, may apply. In National Bank of Greece (Canada) v. Katsikonouris, [1990] 2 S.C.R. 1029, La Forest J. explained the rule thusly at 1040:
… Whatever the particular document one is construing, when one finds a clause that sets out a list of specific words followed by a general term, it will normally be appropriate to limit the general term to the genus of the narrow enumeration that precedes it.
[137] Ruth Sullivan, in Sullivan on the Construction of Statutes, 6th ed. (Markham, Ontario: LexisNexis Canada: 2014) at pp. 235–236, sets out three requirements for this rule of statutory construction to apply: first, the specific items in the list must belong to a single identifiable class; second, this class must be narrower in scope than the general words that follow the list; and third, the rule cannot be invoked if the specific class inferred from the list has nothing, apart from those items, to apply to.
[138] Applying these requirements to the provision at issue, if the rule applies, the class cannot be any factor “that may lead to significant unfairness” as this would violate the second requirement as set out by Sullivan. The other factors enumerated in s. 95(2) suggest consideration of aspects of the relationship between the spouses, including its duration, the terms of any agreement, as well as the characteristics of family assets and debt and how the spouses have influenced their value. One of the considerations in s. 95(2)(g) includes an analysis of a spouse’s good faith or motive. These factors are broad. Nevertheless, in my view, they all relate to a limited class, namely, the economic characteristics of a spousal relationship.
[139] The economic characteristics of a spousal relationship is a broad class, but one that is narrower than the general term in s. 95(2)(i). With regard to Sullivan’s third requirement, there are clearly other factors relevant to the class that are not enumerated in s. 95(2)(a)–(h). For example, this limited class would allow for the consideration of the relative contribution of spouses to the acquisition, preservation, maintenance, or improvement of family property during the relationship, as suggested by Jaszczewska at para. 44.
[Garson J.A.’s emphasis.]
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Justice Funt in He v Gou held that the following unequal division principles apply:
- Singh is authority for considering undisclosed assets in determining significant unfairness within s. 95(2)(i) of the FLA: Singh, para. 140.
- The FLA is not a complete code: V.J.F. v. S.K.W., 2016 BCCA 186, paras. 73–74. Our Legislature, in using the word “unfair”, in my view, intended to incorporate foundational notions of fairness and justice.
- Justice Harris’ reasons in Jaszczewska reflect the Legislature’s emphasis where he states (at para. 42): … one can say that reapportionment will require something objectively unjust, unreasonable or unfair in some important or substantial sense.
- Singh states (at para. 134) There must be a real sense of injustice that would permeate the result if the court did not deviate from the presumptive equal division.
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