By: Nicole Garton, Lawyer, Heritage Law

<aside> 🗣 “Life, I’ve learned, is never fair. If people teach anything in school, that should be it.”

</aside>

The *Family Law Act*, S.B.C. 2011, c. 25 , s. 95 permits the Supreme Court of British Columbia to unequally divide parties’ family property.

Specifically, subsection 95(1) of the Act provides that the Supreme Court may order an unequal division of family property if it would be significantly unfair to equally divide the property, having regard to factors enumerated in s. 95(2), including, among others:

a)   the duration of the relationship between the spouses;

b)   the terms of any agreement between the spouses ...;

c)   a spouse's contribution to the career or career potential of the other spouse;

...

i)     any other factor, other than consideration referred to in subsection (3) [the need for spousal support], that may lead to significant unfairness.

Subsection 95(3) provides that if the objectives of spousal support described in the Act **have not been met in making a spousal support order, the court dividing family property may consider the extent to which the financial means and earning capacity of a spouse have been affected by the responsibilities and other circumstances of the relationship between the spouses.

Despite the provisions in s. 95, the discretion afforded to trial judges by the Family Law Act does not permit judges to substitute subjective conceptions of fairness for the regime established by the legislation. Specifically, the legislation is not intended to rectify disparity arising solely from excluded property. That is reflected in the express limit on the court’s discretion in s. 96:

96 The Supreme Court must not order a division of excluded property unless

(a) family property or family debt located outside British Columbia cannot practically be divided, or

(b) it would be significantly unfair not to divide excluded property on consideration of

(i) the duration of the relationship between the spouses, and

(ii)a spouse's direct contribution to the preservation, maintenance, improvement, operation or management of excluded property.

<aside> ❓ What facts will lead a trial judge to find that:

• an equal division of family property would be significantly unfair in a case (satisfying the criteria for redistribution under s. 95(1)), and/or
• that a party is entitled to compensatory support (satisfying the threshold criteria for redistribution under s. 95(3))? </aside>

<aside> 👉🏼 No Unequal Division of Property

</aside>

In the case of *Cook* v. Cook, 2020 BCSC 389, the Honourable Mr. Justice Jenkins found that it would be significantly unfair to equally divide family property because of a financial disparity arising from an inheritance, an excluded asset under the Family Law Act.