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Unequal BC Family Property Division Misconduct

Unequal BC Family Property division Misconduct cases allow for unequal division of the Family Property pie due to misconduct during the relationship. In most cases, family property and debt is divided equally but there are some exceptions including where one spouse has disposed of family property inappropriately. In today’s blog Eleanor Surajballi explains the rules.

MacLean Law’s Unequal BC Family Property Division Misconduct lawyers act across Canada across BC in Calgary and in Toronto.

Vancouver Unequal BC Family Property Division Misconduct

Unequal BC Family Property Division Misconduct
Eleanor Surajballi Unequal BC Family Property Division Misconduct lawyer

Section 81 of the Family Law Act (the “FLA”) has as its starting position, an equal entitlement and responsibility of the parties to family property and family debt regardless of their respective use or contribution. The legal terms of what is family property and what is family debt is spelled out in sections 84 and 86 respectively.

But what happens in cases where you have a spouse or a partner who spent family assets on a third party during the relationship? or where one party had gambled away money? Or even incurred significant debts during the relationship and even after separation? Unequal BC Family Property Division Misconduct can lead to reapportionment of family property.

In instances such as the above, a party at trial, can seek an order for the unequal division of Family Property pursuant to section 95(1) of the FLA. Section 95(1)(a) of the FLA states that: “the Supreme Court [ of British Columbia] 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”. 

In considering whether it would be significantly unfair to award unequal division of family property and family debt, the Court must engage in a two-step process. Firstly, the Court needs to make determinations on what is family property, family debt and excluded property and then undergo the notional exercise of dividing family property and family debt equally. Secondly, the Court determines whether unequal division would be significantly unfair considering the factors set out in s 95 of the FLA, as outlined below: 

  1. the duration of the relationship between the spouses (s 95(2)(a));
  2. the terms of any agreement between the spouses (s 95(2)(b)), 
  3. a spouse’s contribution to the career or career potential of the other spouse (s 95(2)(c));
  4. whether family debt was incurred in the normal course of the relationship between the spouses (s 95(2)(d));
  5. 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 (s 95(2)(e));
  6. 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 (s 95(2)(f));
  7. the fact that a spouse, other than a spouse acting in good faith,
    1. substantially reduced the value of family property (s 95(2)(g)(i), or
    2. 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 (s 95(2)(g)(ii));
  8. 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 (s 95(2)(h));
  9. any other factor, other than the consideration referred to in subsection (3), that may lead to significant unfairness (s 95(2)(i)).
  10. The Supreme Court may consider also 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 if, on making a determination respecting spousal support, the objectives of spousal support under section 161 [objectives of spousal support] have not been met (s95(3)).

Surrey Unequal BC Family Property Division Misconduct

Unequal BC Family Property Division Misconduct lawyers know that differing contributions and wasting or hiding of family property can lead to unequal division to ensure justice is achieved.

In determining whether it would be significantly unfair to allocate family property and debt equally, the Court requires the asserting party to demonstrate that there was something objectively unjust, unreasonable, or unfair in some important or substantial sense having regard to the factors set out in s95(2) – Jaszczewska v. Kostanski, 2016 BCCA 286 at paras. 41-42. If spousal support is claimed, the Court would also need to review the objectives of spousal support in section 161 prior to making an order for unequal division of family property. 

Takeaway Best Family Lawyers

In a recent BC Supreme Court case of Poon v. Yuen, 2021 BCSC 1809, the parties were married for 46 years and had assets in Hong Kong and Canada. The Claimant sought an order for unequal division of Family Property and debt on the grounds that the Respondent, amongst other things, had dissipated family property on a third party and withdrew $1,000,000 from his bank account. The Court concluded that it would be significantly unfair to award an equal division of family property and awarded the Claimant 60% of the Family Property.