British Columbia Family Law Blog

The June 2009 British Columbia Court of Appeal decision of GAIN upheld a British Columbia divorce and family law asset reapportionment in favour of a wife who was partially paralyzed as a result of a motor vehicle accident and thus provides the current state of law on family property reapportionment in British Columbia.

The parties were married for 29 years and the wife worked as a teacher and the husband was a Parks’ ranger.  In 1981, the wife suffered serious and permanent injuries including partial paralysis as a result of a motor vehicle accident she was involved in.  The assets to be divided at the time of the marriage breakdown total approximately $1.2 million and consisted largely of assets purchased with the wife’s settlement funds from her motor vehicle accident.  While the wife sought 75/25 reapportionment in her favor at trial, she was awarded 65/35 of the assets by the trial judge.

The Court of Appeal held:

[9]           Ms. Gain sought a reapportionment by which she could realize in excess of $1.0 million.  Mr. Gain maintained that, despite the extent of Ms. Gain’s require­ments and her understandable desire to be as comfortable as possible, it would not be fair to reapportion the family assets to the extent of more than 75% in her favour, which is what would be required to provide what she was seeking.  He sought the opportunity to retain some of the farm, given it was the only work he had known for many years. 

[10]        The judge said the result for which Ms. Gain contended would be unfair.  In undertaking an analysis based on s. 65(1) of the Family Relations Act, R.S.B.C. 1996, c. 128, she found that, while Ms. Gain’s concerns for her future well-being were entirely legitimate, what were advanced as her future costs were unsupported by any compelling medical evidence.  She observed the family of four had lived on an income that was less than what Ms. Gain sought for herself.  She took the view the family had always used the portfolio as its bank account and had invested part of it in acquiring the farm which had provided an idyllic lifestyle while greatly increasing in value.  The life the family chose had required Mr. Gain to give up paid employ­ment and the benefits of future security like a retirement pension, and both parties were now at a stage where they required a significant portion of the family assets to attain and maintain self-sufficiency at a reasonable standard of living.  The judge saw Mr. Gain’s inheritances as enhancing his ability to be self-sufficient, thereby allowing a greater share of the family assets to be used by Ms. Gain for the same purpose.  Since separation, Mr. Gain had encroached on a non-family asset to maintain the value of the parties’ principal asset, the farm, while Ms. Gain had encroached to about the same extent on a family asset to support herself and fund this litigation.  The judge concluded:

[37]  I am satisfied that the appropriate division of family assets is a reapportionment 65 per to Ms. Gain, 35 per cent to Mr. Gain.  This allows each the option of purchasing accommodation while living on the balance of the capital at a reasonably modest standard; the standard they lived by throughout the marriage.  It reflects Ms. Gain's greater need and the fact that the parties have assets worth slightly over $1 million. 

[11]        The 65/35 reapportionment in Ms. Gain’s favour means she receives in the order of $845,000 in value in respect of the family assets and Mr. Gain receives about $455,000.  Mr. Gain of course retains the balance of his inheritance of an additional $240,000.   

Taking all these factors into account, the British Columbia Court of Appeal declined to set aside the trial judgment and dismissed the appeal.  The key points to take away from this decision are that a court in a BC family asset reapportionment action must consider all of the factors under section 65 in reaching a decision as to whether fairness dictates a reapportionment of assets in favour of one of the parties instead of the presumptive equal division of assets at the end of a marriage that occurs in 95% of cases.

It is also important to note that a court cannot in an attempt to bolster one spouse’s economic self-sufficiency, destroy or impair the economic self-sufficiency of the other, and it is only in cases where an equal division of assets is unfair that a court will use their power to reapportion assets to achieve fairness.

In the present case, taking into account the wife’s far greater need based on her health issues and the fact that the husband had an inheritance which would assist him in becoming self-sufficient, a 65/35 reapportionment of assets in the wife’s favour was fair.