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MARITAL PROPERTY - Equalization or division - Exempt acquisitions and deductions

Tuesday, September 17, 2019 @ 8:34 AM  


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Appeal by the wife from trial judgment reapportioning family property in favour of the husband. The parties were married from 2009 to 2016. There were no children of the marriage. The husband owned a home before the relationship and inherited money from his mother during the relationship. The wife came into the relationship with no assets and no savings. During the marriage, the husband transferred the home and much of the inheritance into his and the wife’s joint names. By the time of the transfer, she had worked hard on improving the home and the judge inferred that the husband thought she deserved an interest in it. On an equal division of property, the wife would end up with one-half of the family property worth $236,345 and half of the pension benefits accumulated by the parties during the relationship, which were mostly the husband’s. The husband would end up with one-half of the family property worth $236,345 plus his excluded savings of $92,889, for a total of $329,324, plus half of the pension benefits accumulated by the parties during the relationship. The trial judge found as a fact that the husband intended to gift his otherwise excluded property to the wife when he put it in their joint names, and it therefore constituted family property. The judge then found that it would be significantly unfair to divide family property equally, and so reapportioned the family property in such a way as to return to the husband much of the starting value of the formerly excluded home, such that both spouses shared in the growth of the value of the assets during the relationship roughly equally, including from the husband’s inheritance.

HELD: Appeal dismissed. It was not procedurally unfair for the judge to consider and order unequal division of family property in the husband’s favour although this was not pleaded nor argued at trial. While both parties sought equal division of family property, the parties were at odds as to which assets were family property. The judge properly understood that the substance of the dispute between the parties was the amount of assets each would receive. This was apparent from the parties’ pleadings and positions at trial, including the wife’s position that the pleadings ought to be interpreted broadly to permit her to advance a claim in unjust enrichment for work she did on the home, despite this not being expressly pleaded. The judge did not give undue weight to the fact that the wife did not advance the respondent’s career. It was in the context of weighing all the facts and circumstances of the parties in order to determine if equal division of family property would be significantly unfair that the judge reviewed the question of whether the she had contributed to the husband’s career. The judge neither diminished her contributions to the husband’s career nor exaggerated them but treated this as a neutral factor. The judge’s determination that equal division of family property would be significantly unfair was not clearly wrong. The judge recognized that both parties made contributions of many kinds during the marriage, including contributions of salary and labour. The judge considered factors he was entitled to consider and did not overlook a factor he ought to have considered.

Venables v. Venables, [2019] B.C.J. No. 1400, British Columbia Court of Appeal, M.E. Saunders, J.J.L. Hunter and S.A. Griffin JJ.A., July 29, 2019. Digest No. TLD-September162019006