Either spouse may ask the court to “reapportion” one or more assets into his or her favour, for example, from 50-50% to 75-25%. On such application, the court will consider whether 50-50% would be “significantly unfair” in consideration of the s. 95(2) factors: (a) the length of the relationship; (b) the terms of any agreement; (c) the contribution to the career of the other spouse;(d) the family debt; (e) 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; (g) whether a spouse reduced the value of or disposed of property; (h) any tax liability incurred by a spouse as a result of a transfer or sale of property; (i) any other factor that may lead to significant unfairness.
The court may also consider the s. 95(3) factor, how the financial means/earning capacity of a spouse have been affected by the relationship, if “the objectives of spousal support have not been met.” The “objectives of spousal support” are set out in s. 161: (a) to recognize any economic advantages or disadvantages to the spouses due to the relationship or its breakdown; (b) to apportion between the spouses the financial consequences arising from the care of their child (not including child support payable); (c) to relieve economic hardship of the spouses due to the breakdown of the relationship; (d) as far as practicable, to promote the economic self-sufficiency of each spouse.
The FLA has been interpreted as restricting (as compared to the former Act) the court’s discretion to reapportion assets for the purpose of enabling financial independence. This is because s. 95(3) stipulates that enabling financial independence must first be considered in the context of spousal support. On the other hand, some argue that s. 95 gives the court a broader discretion to reapportion assets to enable financial independence due to s. 95(2)(i): “any other factor”. (The former Act restricted the types of “unfairness” to a specified list). If there is a wider discretion, it is definitely tempered by the requirement that any unfairness needs to be “significant”. “Significantly unfair” has been interpreted as follows: “Only when an equal division brings consequences sufficiently weighty to render an equal division unjust or unreasonable should a judge […] depart from the default equal provision.” G.(L.) v. G. (R.), 2013 BCSC 983.
In a real-life example, after a relationship of over 11 years, a judge applied factor 161(a). The common-law wife argued that she contributed to the career of the husband by assisting him to develop a successful new business. This business was so successful that it enabled him to quit his regular job and by the time the parties separated, the business only required him to “work a bare minimum”. The court found that she had enabled him to “live the lifestyle he now enjoys”. The court also found that the parties’ original plan, which was that they would both enjoy such a lifestyle, had not materialized; it only benefited the husband. The judge accepted that the situation was “unfair” but ruled it did not amount to “significant unfairness” as is required by the law – W. (S.L.M.) v. W. (M.R.G.) 2016 BCSC 272.