The court will determine the value of family property to be divided as of the date of trial. The question that arises is what happens if family property has either increased or decreased in value between the date of separation and the date of trial as a result of the unilateral actions of one of the spouses.
In Blair v. Johnson, 2015 BCSC 761, a case that dealt with the increase in value of family property beyond market trends, Justice Fleming considered section 95(2)(f) of the Family Property Act and found that:
[83] In all of these circumstances, including Mr. Blair’s role in causing a dramatic increase in revenues for Integral and, therefore, the value of the shares in Alberta Co. post separation and Ms. Johnson’s overall lack of contribution to Mr. Blair’s businesses throughout the relationship, I find it would be significantly unfair to equally divide the increase in the value of the shares. I order the increase to be divided 70% in favour of Mr. Blair and 30% to Ms. Johnson, resulting in values of $3,512,600 and $1,505,400 respectively.
In the decision, Justice Fleming quoted the decision N.M.M. v. N.S.M., 2004 BCSC 346, where Mr. Justice Joyce summarized the relevant principles as follows:
[76] From my review of the forgoing authorities I distill the following principles:
- Because it was the triggering event that gave each spouse a prima facie equal interest as tenants in common in each family asset, the circumstances at that date should be considered to determine whether an equal division would be unfair.
- Generally the spouses share any increase or decrease in value of a family asset that occurred after the triggering event because their interests in the asset vested.
- Valuation at the date of trial was generally appropriate when considering the mechanism under s. 66 to achieve the division of family assets, for example, by dividing the assets in specie by vesting the assets in the names of the parties or by vesting an asset in the name of one party in exchange for an order compensating the other for the divested interest.
- Generally the appropriate date for valuing family assets was the trial date, however there was a discretion to fix another date, not earlier than the triggering event, if it was necessary to achieve fairness.
- Discretion may have existed to reapportion assets or to vest title in one spouse while awarding the other compensation taking into account events following the triggering event where for example, the conduct of one party caused the asset to increase or decrease in value and it would have been unfair and unjust to ignore those events.
- Where it was established that one spouse disposed of a family asset or caused it to decrease in value significantly, the court could order compensation for that loss. The compensation was based on the loss in value, which necessarily involved determining the value of the asset prior to the loss.
