British Columbia Family Law Blog

In Wolowidnyk v. Wolowidnyk, a recent British Columbia Court of Appeal decision, the Honourable Madam Justice Kirkpatrick reapportioned the matrimonial home in favour of the husband. This order was paired with a lump sum spousal support award of $25,000 in order to ensure the wife’s future economic self-sufficiency.

At the time of marriage Mrs. Wolowidnyk was 53 years old and Mr. Wolowidnyk was 62 years old. The parties had only been married for about five years when their relationship broke down. Both parties were employed at the time of marriage but by the end of the marriage he had retired and she had gone on medical disability for tinnitus in her ear. Both parties held RRSPs, pensions and some savings. The parties had lived separate and apart for approximately 18 months prior to trial. At the time of the marriage Mr. Wolowidnyk owned two residential properties in Surrey and Mrs. Wolowidnyk owned one piece of rental property in Surrey. During the marriage, the parties lived in one of the properties initially owned by Mr. Wolowidnyk (“the matrimonial home”) which they then held in joint tenancy. Over the course of the marriage Mr. Wolowidnyk sold his second piece of property and Mrs. Wolowidnyk sold her rental property as well.

At trial, the uncontested evidence was that Mr. Wolowidnyk had continued to make all of the mortgage payments and pay all of the property taxes on the matrimonial home. Yet the trial judge found that Mr. Wolowidnyk was “an extremely sanctimonious and arrogant man with a great facility for exaggeration. I have great difficulty accepting any of his testimony.” Additionally, in applying the Family Relations Act, the relevant legislation for property division upon marriage breakdown, the trial judge failed to consider the date on which the matrimonial home had been acquired – some 14 months prior to the marriage. This failure, according to the Court of Appeal, indicated that the trial judge had committed a “palpable and overriding error”. As such, the Court of Appeal was at liberty to reassess the facts of the case.

They found that the trial judge appeared to have disbelieved the crucial and uncontested fact that Mr. Wolowidnyk had made all of the mortgage and property tax payments. The Court of Appeal considered the relatively short duration of the marriage, the length of time the parties had lived separate and apart, the date when the matrimonial home was acquired, the needs of each spouse to become or remain economically independent and self-sufficient, the capital contributions both parties had made to the matrimonial home, and finally the fact that both parties had preserved, maintained and improved the home. In light of all these factors, the Court of Appeal found that “an equal division of the matrimonial home would be unfair.” They ordered that “the fair reapportionment of the matrimonial home is 60/40 in favour” of the husband. They further ordered that the home be listed for sale immediately “with the parties to have joint conduct of the sale.” Mr. Wolowidnyk was to continue to make the mortgage payments and was “entitled to reimbursement for the principal portion of all such mortgage payments from 1 July 2007.”

Because the Court of Appeal had altered the trial judge’s decision vis-à-vis the matrimonial home, they awarded lump sum spousal support in the amount of $25,000 to be paid within one month of the variation order to bridge the period of time during which Mrs. Wolowidnyk’s income was uncertain as she awaited her entitlement to all of her pension income. This award would ensure her economic self-sufficiency.