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MARITAL PROPERTY - Unequal division of property

Tuesday, April 02, 2019 @ 8:42 AM  


Lexis Advance® Quicklaw®
Appeal by the husband from trial judgment awarding him only a 15 per cent share of the family property because he earned significantly less than his wife over the course of the parties’ relationship and had not contributed equally to the family economy and burdens. There were no children of the marriage. In January 2010, the husband moved into the wife’s condominium. In 2011, he moved out for several months after an argument. In August 2012 he proposed to the wife and moved back into the condominium. The parties married in 2013 and separated in 2016. The trial judge found the marriage commenced in May 2012 when the husband moved back in with the wife and ended in August 2016. Both the husband and the wife said that they were trying to reconcile after the husband moved out in 2011. The judge did not explain why he found that the marriage began in August 2012 rather than in January 2010. The net increase in value of the family home using the appraised values was $267,000 and using the assessments it was $158,000. The trial judge found it would be significantly unfair if the husband were to share equally in the increase in equity in the circumstances of this case. He was unemployed from August 2012 to March of 2014 and did not materially contribute to the mortgage or to the general welfare of the home. The wife testified that the husband paid $1,500 into the joint account which she described as his share of the bills, including the mortgage payment. She also gave evidence that their monthly expenses came to $3,000 to $4,000, but even using these figures the husband’s financial contribution for much of the marriage was in the range of one-third to one-half of their expenses.

HELD: Appeal allowed. Although the judge was not bound to accept the appraised values, it was an error to reject them without some explanation in the circumstances of this case. The judge erred in principle in assuming that if the husband did not contribute 50 per cent to the financial and housekeeping efforts during the relationship, it would be significantly unfair to apply the presumption of an equal division of property. A 15 per cent share of family property did not reflect the husband’s percentage contribution to family expenses on the facts found by the judge, even if that approach could be justified.

Khan v. Gilbert, [2019] B.C.J. No. 324, British Columbia Court of Appeal, P.A. Kirkpatrick, R. Goepel and L.A. Fenlon JJ.A., March 7, 2019. Digest No. TLD-April12019005