February 27, 2021
Unequal Division of Family Property Part 2: Unequal Contribution and Bad Behaviour
Vancouver & North Vancouver family lawyer discusses the unequal division of family property
Can unequal contribution and bad behaviour lead to unequal division of family property? It just might.
As I have discussed in my previous blog post found here, family property is generally shared by spouses equally if they separate. Family property is all property earned or acquired by one of the spouses during the “spousal relationship.” I discuss the defining features of spousal relationships here.
Family property can only be unequally divided if it is “significantly unfair” to divide it equally. To clear the high hurdle of significant unfairness, there must marked, prolonged, and intentional or unexplained disparities in contribution to family burdens. Unequal division requires something objectively unjust, unreasonable, or unfair in some important or substantial sense.
Under the Family Law Act there are nine listed circumstances in which family property can be unequally divided. Although this list of factors was supposed to introduce certainty into our family property law, there is a catchall provision that allows courts quite a bit of discretion when deciding if they want to unequally divide property. In the recent case Vancouver BC Supreme Court case of Chang v. Chang 2020 BCSC 1783, the “other factor” warranting unequal division was the lack of contribution of one spouse and most surprisingly, his bad behaviour.
In this case, Ms. Chang and Mr. Chang were married for 27 years prior to separating in 2017. Over the course of their relationship, Ms. Chang undertook the majority of the childcare, household and financial responsibilities for the family. Further, Mr. Chang displayed concerning behaviour throughout the relationship.
- On the date of the parties’ separation Mr. Chang, Ms. Chang and one of their sons got into an altercation. As a result of that altercation, Mr. Chang entered into a recognizance that included a provision that he have no contact with Ms. Chang or the parties’ sons.
- For the 10 years leading up to the parties’ separation, Mr. Chang reported low total annual incomes. He was unemployed during significant periods during the marriage and he was not always motivated to search for work. He often left jobs voluntarily.
- Mr. Chang was always the primary caregiver to the parties’ sons and was responsible for most of the housekeeping duties.
- Mr. Chang testified that she feared leaving their sons solely in Mr. Chang’s care as he lacked patience and he angered easily. When angry, he would yell and call their sons names. Mr. Chang would also raise his hand threateningly as if to hit them. Ms. Chang gave many examples of Mr. Chang’s questionable behaviour and angry outbursts towards their sons.
- Mr. Chang’s history of inappropriate behaviour also extended to his relationship with Ms. Chang. He taunted and belittled her, especially about her work. Mr. Chang told her that City workers were lazy.
- Mr. Chang mistreated the family dog.
- Mr. Chang was a hoarder. He filled all of the main rooms, hallways, garage and exterior storage sheds at the Family Home with his purchases, collections and possessions. Many areas inside the family home appeared virtually impassable due to massive piles of Mr. Chang’s possessions. For example, in the basement recreation room, there were stacks of boxes and possessions nearly filling the room, except for a narrow pathway. As a result Ms. Change was too embarrassed to invite friends over.
- Mr. Chang undertook a renovation of the downstairs bathroom. He demolished the shower stall but never replaced it. Mr. Chang’s bathroom renovation effectively reduced the total working showers from two to one.
Based on the above facts, the court unequally divided the family home in Ms. Chang’s favour by providing Mr. Chang with only 25% of the equity.
The court’s decisions was based on: (1) Mr. Chang’s lack of contribution vis-a-vis Ms. Change; and (2) the bad behaviour of Mr. Chang.
Lack of contribution
The court found that there was evidence of significant disparities in contribution to family burdens, such as childrearing and household duties, which were intentional and unexplained. Mr. Chang’s renovations were detrimental to the family home. He also spent his limited earnings on his own personal, discretionary expenses for items such as memorabilia and spare tools, before he contributed anything to family expenses. He deliberately prioritized his own spending needs above the financial needs of his family. Mr. Chang spent prolonged periods underemployed or unemployed. He provided no reasonable explanation for his lack of employment, his lack of motivation to work, or his failure to make a greater financial contribution to the marriage.
Bad behaviour
In addition to Mr. Chang’s deliberate pattern of lesser contribution to financial, childrearing and household duties, the court held that that the bad behavior of Mr. Chang also warranted unequal division, namely:
- Mr. Chang’s history of inappropriate behaviour such as bullying, threatening and denigrating talk directed at Ms. Chang and the parties’ sons, which made Ms. Chang fearful of ending their relationship earlier; and
- Mr. Chang’s long use of the Family Home as a place to hoard massive quantities of his possessions, which deprived his family of the full use and enjoyment of the Family Home.
What’s the takeaway?
If one spouse has contributed significantly more to the relationship in terms of finances, child-rearing and household duties, a court may decide to unequally divide family property. Further, if one spouse engages in a repeated pattern of inappropriate, self-focused and bullying behaviour, they just might be punished for it by having family property unequally divided, to their detriment.
The likelihood of this occurring can only be assessed on a case-by-case basis and thus it is very important to consult a Vancouver family property law lawyer to discuss the likelihood of an unequal division occurring in your case. You can contact me here to book a free consultation to discuss your unique situation.
NOT LEGAL ADVICE. Information made available on this website is for information purposes only and is not legal advice. Do not rely on this information, nor take or fail to take any action, based upon this information. Do not disregard professional legal advice or delay in seeking legal advice because of something you have read on this website.
February 10, 2021
Unequal Division of Family Property Part 1: Short Relationships and Unequal Financial Contribution
If one spouse owns the family home, contributes more money and the relationship is short, will family property be divided equally?
A common situation is this: a couple moves in together and only one of them owns and financially maintains the family home. They are together for a few years (as least two) and then they separate.
As I have discussed in my previous blog post found here, family property is generally shared by spouses equally if they separate. Family property is all property earned or acquired by one of the spouses during the “spousal relationship.” I discuss the features of spousal relationships here.
When B.C.’s Family Law Act was enacted in 2011, it was supposed to bring some certainty into how family property is divided. That is, family property is presumed to be equally divided 50/50, regardless of the contribution of each spouse. Further, under the Family Law Act, family property can only be unequally divided if it is “significantly unfair” to divide it equally – and the courts have said this is a high bar.
To meet the “significant unfairness” test, the court must be satisfied that there exists “something objectively unjust, unreasonable or unfair in some important or substantial sense” which requires the family property to be divided unequally.
After the enactment of the Family Law Act, family law lawyers thought that courts would unequally divide family property only in rare circumstances, but we have seen more unequal division cases than expected – in fact, unequal division cases are on the rise in British Columbia.
Is a short relationship where only one of the spouses owned and financially maintained the family home one of these “significantly unfair situations” that warrants unequal division?
It seems so.
A court may unequally divide family property if it would be significantly unfair to divide it equally based on the short duration of the relationship and “any other factor” that may lead to significant unfairness. The contribution of each spouse has been considered by the courts within the “any other factor” consideration for an unequal division.
Below I will discuss short relationships and unequal contribution as a basis for unequal division.
Short relationship
We have seen unequal division by the courts in cases where the spouses have relatively short relationships. Specifically, a relationship of approximately 4 years or less has been a factor that has been given considerable weight in supporting unequal division cases. In Vancouver, we saw quite a few unequal division cases in short relationships due to the dramatic rise in the Vancouver real estate market. This led to a significant increase in the value of the matrimonial homes in a short period of time, with little or no contribution of the non-owning spouses. The courts saw the 50/50 split of the increase in the value of the family home as a windfall to the non-owning spouse, and thus significantly unfair.
Lack of contribution
In several BC cases, the court has also reapportioned the increase in the value of a property to the spouse that owned the property before the relationship began and was responsible for virtually all of the payments towards the down payment, mortgage, taxes, and the ongoing household expenses of the property before and during the relationship. Unequal division based on lack of contribution is most often tied to the short length of a relationship, as relative contribution becomes less significant in longer relationships where the spouses’ lives are more intertwined.
Recent BC court case on unequal division
Recently another B.C. court unequally divided the family home based on the short length of the relationship and the non-owning spouse’s lack of contribution.
In the recent Vancouver BC Supreme court case of Chapman v. Cuthbert 2021 BCSC 1, the parties were in a common-law relationship for approximately 2.5 years, which ended with separation in November 2017. The main issue in dispute was the division of the matrimonial home. Mr. Cuthbert owned the family home before the relationship, and the couple lived in the home during their relationship. The increase in equity in the family home during the spousal relationship was $196,505.02, and this was attributable to market forces rather than any specific contribution by either of the parties towards the family home.
Mr. Cuthbert asked for an unequal division of the family home on the basis that equal division would be significantly unfair due to the short length of the relationship; because he owned the matrimonial home before the relationship; and was the sole person on the mortgage to the home, made all the mortgage payments, took care of all of the property-related expenses, and a substantial portion of the parties’ joint living expenses.
Ms. Chapman sought an equal division of the family home under the Family Law Act.
The court found that the family home should be divided unequally. The court awarded Mr. Cuthbert 80% of the increase in the value of the family home and Ms. Chapman 20% of the increase in the value of the family home.
The court stated that the greatest factor which resulted in the unequal division was the short duration of the relationship between the parties (2.5 years). The court also found that the unequal contribution of the parties meant it was unfair to divide the family property portion of the family home equally. Namely, the asset was purchased with Mr. Cuthbert’s money, he paid for all the house-related expenses, and he was the only person who put his money and credit at risk by being solely on the title for the mortgage.
What’s the takeaway?
If the family home has increased in value during the relationship but one spouse owned the family home before the relationship, has contributed to most of the expenses and the relationship was relatively short, there is a reasonable likelihood that the equal division of family property division provisions will not be followed, and family property will be unequally divided. The likelihood of this occurring can only be assessed on a case-by-case basis and thus it is very important to consult a Vancouver family property law lawyer to discuss the likelihood of an unequal division occurring in your case.You can contact me here to book a free consultation to discuss your unique situation.
NOT LEGAL ADVICE. Information made available on this website is for information purposes only and is not legal advice. Do not rely on this information, nor take or fail to take any action, based upon this information. Do not disregard professional legal advice or delay in seeking legal advice because of something you have read on this website.
