The BC family property division lawyers at MacLean Law approve of attempts by the BC government to provide more certainty to family property division upon relationship breakdown. How much more certain the BC family property division law now is will be decided over the next few years. For our medium to high net worth income and asset clients the steady guidance of one of our experienced family lawyers is reassuring. Call us toll free at 1-877-602-9900.
What Does Significantly Unfair Mean and How Do I Prove It?
The new law on BC Significantly Unfair Family Property Division is presenting a challenge to lawyers and judges. Will the judges be more strict in rejecting claims for more than half the assets? The law is clear that the factors that can lead to unequal division are now more numerous but the test to succeed went from proving unfairness to proving significant unfairness. In a nutshell it will be harder to succeed in getting more than half of the family property. One judge has stated that he may not know exactly what significant unfairness means but he knows it when he sees it. BC Significantly Unfair Family Property Division cases require a thorough analysis of all factors.
Section 95 of the FLA says that the court “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.”
Unequal division by order
95 (1) The Supreme Court may order an unequal division of family property or family debt, or both, if it would be significantly unfair to
(a) equally divide family property or family debt, or both, or
(b) divide benefits as required under Part 6[Pension Division].
(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.
(3) 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.
When you have a BC significantly unfair family property division the first thing you need to do is call one of our experienced family law lawyers to find out your rights. We have offices in Vancouver, Surrey, Kelowna and Fort St John BC.
