Are you worried your spouse might be conspiring with others to reduce your support or hide family assets from you? It’s not an uncommon concern, and a recent case from the British Columbia Supreme Court of Kennedy v Kennedy, 2025 BCSC 1165 sheds some light on how the courts view claims of Conspiracy to Avoid Support and Property Division. In today’s blog Jonathan Wai, senior family associate explains the tort.
In this case, the wife was seeking orders for divorce, child and spousal support, and the division of property. A key part of her claim was an allegation that her husband and other individuals (referred to as “Non-Spouse Respondents”) conspired to hide money, income, and assets. She believed this was done to shield her husband from his obligations for property division, child support, and spousal support, and made a separate legal claim for this, known as a “tort” of conspiracy, over and above her support and property claims.
The Non-Spouse Respondents, on the other hand, asked the court to dismiss the wife’s conspiracy claims, arguing they had no reasonable chance of success. If successful, this means the wife’s claims for conspiracy itself would not proceed, though her claims for support and property division would.
The court had to decide whether the wife’s claims of Conspiracy to Avoid Support and Property Division could proceed. This involved looking at two main areas: conspiracy related to child and spousal support, and conspiracy related to property division.
Conspiracy to Avoid Child and Spousal Support Tel: 604 602 9000
When it came to the alleged Conspiracy to Avoid Support and Property Division concerning child and spousal support, the court referred to an earlier binding decision, Waters v. Michie 2011 BCCA 364. In Waters, the court found that a claim of conspiracy to recover losses from the frustration of proper child support calculations does not add anything to the existing laws for child support, which include the court’s powers to impute income to a parent and make an order in respect of a parent’s retroactive and prospective child support liability. The court extended this reasoning to spousal support as well.
The court in Waters emphasized that extending the tort of conspiracy into family law for support matters is not in the best interests of children and could undermine the comprehensive legal framework already in place for child support.
To be clear, this existing legal framework already includes, amongst other things:
- the court’s robust ability to compel disclosure from a payor of support, including but not limited to all relevant bank and credit card statements, tracing of unexplained monies in or out of the accounts including to third parties, as well as obtaining corporate accounts and financial statements for corporations that the payor controls;
- impute the payor’s income or fix an income to the payor that is higher than the payor reports, whether based on incomplete financial information, or clear lifestyle expenses that support a higher income, or corporate expenses that are a personal benefit, or retaining monies in a corporation to keep person income artificially low, or paying out monetary benefits to other parties beyond what the market would require;
- other powers, for example, to use assets or other existing funds to secure future child support obligations.
Following this, the court concluded that the part of the wife’s claim alleging Conspiracy to Avoid Support and Property Division specifically for child and spousal support was struck, and not allowed to proceed.
Conspiracy to Avoid Property Division
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However, the situation was different for the alleged Conspiracy to Avoid Support and Property Division concerning the division of family property. The court noted that British Columbia’s Family Law Act is not a complete rulebook for property division. It allows for common law ideas like gifts and trusts to still apply, and importantly, it states that rights under property division laws are in addition to rights under other laws or equity. The tort of conspiracy is a common law concept that remains part of Canadian law.
The court acknowledged that there are strong arguments both for and against allowing conspiracy claims in family law cases, especially concerning property division.
Arguments against allowing such claims include the idea that conspiracy claims rest on a shaky, anachronistic legal grounds, can be complex and might make conduct actionable only when combined with others, potentially complicating family disputes, of paramount importance, “it is contrary to the best interests of children, for various reasons which are aggravated by the fact that if it were introduced in the family law context, it would be difficult to restrict to issues involving children.” (para 33).
On the other hand, arguments in favor of allowing Conspiracy to Avoid Support and Property Division claims for property division include (at para. 34):
- Deterrence: Allowing such claims could discourage people from conspiring to hide assets.
- Enforceability: It could help enforce claims against “invisible litigants” – people who are not directly spouses but might conspire to conceal assets
- Pleadings Stage: Generally, claims that are controversial or complex should not be dismissed too early in the legal process, but rather allowed to proceed to a full hearing. This was also seen in Taherkhani v Este, where the court rejected striking a conspiracy claim in a family law matter, finding no blanket prohibition and that it was premature to strike the claim at the pleadings stage.
Considering these points, the court decided that the wife’s claim of Conspiracy to Avoid Support and Property Division related to property division, while “controversial (para 35) should be allowed to proceed. It remains to be seen whether it succeeds or not.
Recent articles emphasize conspiracy is a powerful weapon to prevent undermining of the family law system.
In recent years, the Ontario Court of Appeal changed the landscape on conspiracy in permitting a conspiracy claim against a spouse’s family for assisting him to divert income payable for child support. In Leitch v Novac 2020 ONCA 257, the wife sued her husband, her husband’s parents, a family corporation, and several trusts and trustees, alleging that her husband’s family and entities conspired to defeat her family law claim and conceal her husband’s assets and income. After the couple separated, the husband’s father incorporated a company to provide management services to a casino operation. The father and husband agreed orally that the husband would receive 40 percent of the management fees over the life of the contract. Before the contract ended, the casino owner bought out the contract for nearly $6 million and the lump sum was paid to the father’s corporation. Instead of providing the husband’s 40 percent share for spousal and child support, the husband’s father kept all the income from the buyout.
The Court of Appeal noted that the tort of conspiracy would allow judgment against a co-conspirator which is often the only means by which a recipient will be able to satisfy a judgment.
Further, the Court of Appeal addressed the denial of justice that may occur in family law cases where third parties assist litigants, referring to these third parties as “invisible litigants”. Beyond providing emotional support, invisible litigants become active participants in litigation to achieve their desired result which includes facilitating nondisclosure and deliberating hiding assets and income. Using the tort of conspiracy would be necessary in certain situations to ensure fairness and justice in family law cases.
We clarify that, alongside the tort of conspiracy, there are other legal tools commonly used in these circumstances. For example, if a spouse after separation transfers a property to third person for no or minimal consideration for the purpose of defrauding the other spouse, the other spouse can make a claim under the Fraudulent Conveyance Act to set aside the transaction, including against the third person, and effectively get their property back.
We at MacLean Law have had extensive experience in in this regard, for example in Wang v Jiang, 2020 BCSC 145, where we got declarations that it was the husband who in fact owned a group of corporations, and that the transfers of shares to his other family members were void and of no effect.
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This case highlights an important distinction: while claims of Conspiracy to Avoid Support and Property Division may not succeed when existing statutory schemes provide comprehensive remedies for support issues, they might be viable when it comes to the division of family property, especially if assets are alleged to have been hidden through concerted action.
If you are concerned about Conspiracy to Avoid Support and Property Division in your own family law matter, it is crucial to seek legal advice. The experienced lawyers at MacLean Law, with locations in Greater Vancouver, Surrey, Victoria, Kelowna, and Calgary, can help you understand your rights and explore the best path forward.
By Jonathan Wai, Senior Lawyer at MacLean Law
