There are two ways a court can order an unequal division of family property pursuant to the Family Law Act. One is based on non-disclosure where a court can draw an adverse inference and impute income and assets, and the other is based on the fact that an equal division would be significantly unfair.
The Family Law Act, section 95 states:
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 family property 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.
In Jaszczewska v. Kostanski, 2015 BCSC 727, Madam Justice Baker states at paragraphs 166 to 169:
[166] In L.G. v. R.G., 2013 BCSC 983, as para. 71, Justice N. Brown stated:
In my view, the term “significantly unfair” in s. 95(1) of the FLA essentially is a caution against a departure from the default of equal division in an attempt to achieve “perfect fairness”. Only when an equal division brings consequences sufficiently weighty to render an equal division unjust or unreasonable should a judge depart from the default equal division.
[167] Similar statements were made in Remmem v. Remmem. In that case, at para. 44, Justice Butler noted:
…The Concise Oxford English Dictionary defines “significant” as “extensive or something weighty, meaningful, or compelling. In other words, the Legislature has raised the bar for a finding of unfairness to justify an unequal distribution. It is necessary to find that the unfairness is compelling or meaningful having regard to the factors set out in s. 95(2).
[168] In Slavenova v. Ranguelov, 2015, BCSC 79, at para. 60, the court said:
The “significant unfairness” contemplated by s. 95 requires much more than differing financial contributions in a relationship. Exactly equal contribution is more likely exceptional than commonplace. The new regime under the FLA recognizes that partners will come to a relationship in differing circumstances and accounts for those in the concepts of “family property” and “excluded property”. The starting point in the division of property analysis already applies significant exclusions.
[169] In Nearing v. Sauer, Justice Fleming stated at para. 141:
Section 95(2) does not appear to allow for the wide ranging examination of each spouse’s contribution to the accumulation of family assets and their respective capacities that occurred pursuant to s. 65(1)(f).
Deborah A. Todd
