Understanding Unequal Division in BC Family Law

Under British Columbia’s Family Law Act (FLA), the default rule upon separation is simple: all family property and family debt are divided 50/50. However, equal does not always mean fair. To prevent unjust outcomes, BC courts have the power to order an unequal division (also known as reapportionment) of assets or debts under Section 95 of the FLA. When couples separate, navigating asset division can become complex, especially when one party feels a 50/50 split creates a real injustice.

Under Section 95(1) of the FLA, a court will only depart from a 50/50 split if an equal division would be "significantly unfair".

The word significantly sets a high bar. BC courts have repeatedly affirmed that minor disparities, bad financial decisions made during the relationship, or general feelings of unfairness are not enough. There must be an outcome that is objectively unjust, unreasonable, or substantially unfair.

When deciding whether to grant an unequal division of family property or debt, BC judges evaluate several specific statutory criteria:

1. Duration of the RelationshipIn short-term marriages or common-law relationships (e.g., under two or three years), awarding 50% of the growth of a major asset brought into the relationship might cause significant unfairness.
2. Post-Separation Conduct & Financial Contributions If one spouse single-handedly paid the mortgage, property taxes, and maintenance after separation, or if one spouse deliberately devalued or hid assets, the court may adjust the split
3. Spousal Agreements Courts examine any verbal or written agreements made between spouses, even if they aren't fully binding separation agreements.
4. How Family Debt Was IncurredDebt taken on to support the household is shared equally. However, if one spouse ran up substantial personal debt (e.g., gambling, reckless spending, or unapproved business ventures) or committed bad-faith disposition of property, the court can assign more of that debt to that spouse.
5. Contributions to the Other Spouse’s CareerIf one spouse sacrificed their own career or earning capacity to support the other through medical school, law school, or building a lucrative business, this contribution is weighed.
6. Tax Consequences & Liabilities If liquidating an asset (like selling a business or cashing out an RRSP) triggers major tax liabilities for only one spouse, courts may adjust the property division to balance the true net outcome.

What About Excluded Property?

Certain assets are excluded from 50/50 division under Section 85 of the FLA, including:

• Assets owned prior to cohabitation;
• Inheritances and third-party gifts received by one spouse;
• Certain court awards or insurance settlements.

This blog post provides general information and is not intended as legal advice. Laws change frequently, please contact DuMoulin Boskovich LLP for advice specific to your situation.