Property Division In Family Matters: Is Age Relevant?

Property division is a hotly contested issue in many family law matters. Family property is usually divisible 50-50, unless one party successfully argues for a reapportionment of family assets. To successfully establish a claim for reapportionment, a party must demonstrate that it would be significantly unfair to equally divide the property at issue. This issue often comes up where the relationship was very short, where one spouse stopped working to further the other spouse's career potential, or where property significantly increased or decreased in value due to the actions of one spouse. The Court can consider a multitude of factors to determine whether a reapportionment claim should be successful, which are set out in section 95(2) of the Family Law Act:

(a) the duration of the relationship between the spouses;

(b) the terms of any agreement between the spouses, other than an agreement described in section 93(1) [setting aside agreements respecting property division];

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

(d) whether family debt was incurred in the normal course of the relationship between the spouses;

(e) if the amount of family debt exceeds the value of family property, the ability of each spouse to pay a share of the family debt;

(f) whether a spouse, after the date of separation, caused a significant decrease or increase in the value of family property or family debt beyond market trends;

(g) the fact that a spouse, other than a spouse acting in good faith,

(i) substantially reduced the value of family property, or

(ii) disposed of, transferred or converted property that is or would have been family property, or exchanged property that is or would have been family property into another form, causing the other spouse's interest in the property or family property to be defeated or adversely affected;

(h) a tax liability that may be incurred by a spouse as a result of a transfer or sale of property or as a result of an order;

(i) any other factor, other than the consideration referred to in subsection (3), that may lead to significant unfairness.

The Supreme Court of BC recently found that a party's age is not relevant to the division of family property in Higgs v. Lear, 2020 BCSC 194. The Court considered the argument that a younger spouse ought to receive more assets, since that spouse would likely have a longer lifespan in which to enjoy the family property. Given the objectives of...