Sep 23, 2020

BCCA Considers Excluded Property Appeal

Jean Louis v. Jean Louis, 2020 BCCA 220 (CanLII)

In this recent case dealing with excluded property and reapportionment of property based on "significant unfairness", pursuant to S. 95 of BC's Family Law Act, the appellant husband sought to overturn numerous orders made by the trial judge, including orders regarding excluded property, and the dismissal of his section 95 arguments. He also sought to introduce new evidence.

The appellant’s major complaint related to the family residence, because the trial judge declined to credit him with the alleged increase in value between January 2006, when he purchased the property, and the date of the marriage in September 2006. The appellant argued that the increase in value between those two dates constituted excluded property. He also suggested that purchase costs and the renovation of a garage ought to be included in his excluded property claim.

The appeal court refused to interfere with the trial judge’s findings of fact that the appellant had not provided sufficient evidence of any increase in value between the time of the home’s purchase and the date of his marriage, and stated that there was no authority to include additional costs, such as legal fees, property purchase tax, and insurance premiums to the quantum of excluded property. The trial judge’s finding that the sum of $35,000 was the only exclusion was upheld.

The appellant also argued that because he had exclusive possession of the family residence from the date of separation in November 2015 to the date of trial in 2019, and had paid for all the home expenses, he ought to receive a larger share of the net equity, based on section 95 of the Family Law Act.

The appeal court said that variance in financial contributions by spouses to family property are the norm, not the exception:

The “significant unfairness” contemplated by s. 95 requires much more than differing financial contributions in a relationship. Exactly equal contribution is more likely exceptional than commonplace. The new regime under the FLA recognizes that partners will come to a relationship in differing circumstances and accounts for those in the concepts of “family property” and "excluded property". The starting point in the division of property analysis already applies significant exclusions.