When a marriage or marriage-like relationship ends in British Columbia, the same questions tend to surface for almost every separating spouse: Who keeps the family home? What happens to assets one spouse owned before the relationship began? How is support calculated when one party earns more than the other, or when income is hard to pin down? Can a parent move away with the children?

In British Columbia, these questions are answered through the application of several pieces of legislation: the Family Law Act governs parenting, support, and property issues for married and unmarried spouses, while the federal Divorce Act contains provisions for parenting and support for married spouses only (though they strongly mirror the relevant terms of the Family Law Act). When child support and spousal support are at issue, the Federal Child Support Guidelines and Spousal Support Advisory Guidelines are used to calculate the numbers.

A decision of the Supreme Court of British Columbia, M.P. v. P.P., and the recent Court of Appeal ruling that followed it, Paletar v. Paletar, are particularly useful because, together, they touch on nearly every issue a separating spouse faces. In this 2-part blog series, we walk through that case in the form of the questions our family law clients actually ask. It covers property division and excluded property, an unsuccessful appeal for an unequal split, relocation with children, protection orders, how a court determines income for support, and the child and spousal support that resulted.

What was M.P. v. P.P. about?

M.P. v. P.P. was a case in the Supreme Court of British Columbia that ran for 14 days and resolved almost every issue that can arise in a separation. The parties met online in February 2017, when the claimant (Ms. P.) was 28 and living with her grandfather in Las Vegas and the respondent (Mr. P.) was 42 and living in a home he owned in Maple Ridge (the “Maple Ridge Home”), where he ran a motorcycle parts business and a motor racing events business, and also owned a commercial strata unit in Port Coquitlam (the “PoCo Shop”). The court found their marriage-like relationship began on May 1, 2017. They married on August 26, 2019, had two children in March 2020 and September 2021, and separated on March 21, 2022, after a relationship of nearly five years.

The trial judge had to decide the duration of the relationship, parenting and support arrangements, the division of family property and debt, and whether to grant Ms. P.’s request for a protection order and to relocate with the children to Nevada. Mr. P. then appealed one part of the result (the equal division of family property), and the Court of Appeal dismissed that appeal in Paletar v. Paletar. Because the appeal used the parties’ full names while the trial reasons were anonymized, we refer to them throughout this post as Ms. P. and Mr. P.

When does a BC court divide family property unequally?

A British Columbia court will divide family property unequally only where an equal division would be “significantly unfair,” which is a deliberately high threshold. Under the Family Law Act, family property is presumed to be divided equally between spouses on separation (s. 81), but a court may depart from this presumption of equal division if this would be significantly unfair. This is determined based on the application of the specific factors listed in s. 95(2) and (3). The onus for proving significant unfairness rests on the spouse who wants the unequal split.

As the Court of Appeal reiterated in Paletar v. Paletar, “significant unfairness” requires something objectively unjust, unreasonable, or unfair in an important or substantial sense, a standard more stringent than the simple “unfairness” test under the old Family Relations Act. The discretion to depart from equal division is, in the Court’s words, “significantly constrained” and must be rooted in the s. 95 factors. The leading authorities, Jaszczewska v. Kostanski, Banh v. Chrysler, Khan v. Gilbert, and Lamoureux v. Hedquist, make clear that unequal contribution alone rarely qualifies; the cases that succeed tend to involve “marked, prolonged, and intentional or unexplained disparities” in contribution to family burdens.

Is the increase in value of property I owned before the relationship divisible in BC?

Yes. Under the Family Law Act, the value of property a spouse owned before the relationship is that spouse’s “excluded property” and is generally kept on separation, but any increase in that same property’s value during the relationship (which starts from the date two parties begin living together in a marriage-like relationship) is family property and is presumptively shared equally. This is set out specifically at section 85(1)(a), which defines excluded property, and s. 84(2)(g)(i), which brings the increase in value into the family property pool.

That distinction drove the numbers in M.P. v. P.P. Both the Maple Ridge Home and the PoCo Shop were acquired by Mr. P. before the relationship, so their value at the start of the relationship was protected as his excluded property. The growth of their value during the relationship, however, was family property and presumptively equally shared. The Maple Ridge Home rose from $1,275,000 to $2,250,000, and after accounting for the mortgage, the divisible increase in its equity was $1,088,523.

The PoCo Shop, which was mortgage-free, increased in value by $1,070,000. After giving Mr. P. credit for his excluded property and accounting for family debt, the trial judge found roughly $1,747,991 in family property available for division. She also found the increase was “largely a function of market forces,” not the special effort of either spouse, and so the family property was divided equally. This entitled each spouse to $873,995.50 of family property, and after accounting for interim distributions Ms. P. had already received, Mr. P. was ordered to make a compensation payment to Ms. P of $738,995.50. Mr. P then appealed this part of the trial judge’s decision, seeking an unequal division of 80% for him and 20% for Ms. P.

Why did the appeal for an 80/20 property split fail?

Mr. P’s appeal failed because the trial judge had applied the correct legal test, considered the relevant factors both individually and together, and reached a result that fell within her discretion.

Mr. P. had argued for an unequal division on the basis that the relationship was relatively short, that substantially all the family property came from the growth of his excluded property, and that the parties contributed unequally. He said the trial judge erred by failing to give adequate weight to the nature of the family property and by assessing each factor in isolation rather than cumulatively.

The Court of Appeal rejected these arguments. Property division under the Family Law Act is a discretionary exercise that attracts a highly deferential standard of review absent an error of law (Singh v. Singh). The Court of Appeal found the trial judge had expressly considered the factors “together” and “as a whole,” and had not ignored the origin of the property; her analysis of the spouses’ relative contributions was itself built on the fact that the family property grew out of Mr. P.’s excluded property. The Court distinguished the circumstances of Venables v. Venables, where a party’s exclusion was lost once their excluded property was transferred into a joint tenancy with the other party, from the circumstances in this case, where Mr. P kept his exclusion and retained that value outright.

The Court of Appeal also noted that the decision in Lamoureux v. Hedquist had since been overturned for placing undue emphasis on relative contributions, and that Chapman v. Cuthbert, where an 80/20 split was ordered, involved a shorter relationship with no children. Here, the relationship was nearly twice as long, there were two children, and Ms. P. had contributed indirectly through homemaking and childcare. Accordingly, the appeal was dismissed.

Meridian Law Group: Providing Dynamic Family Law Solutions in Vancouver & Across BC

In Part 2 of our blog series on M.P. v. P.P., we discuss the other issues involved in the case, including parenting, relocation, family violence, and support. We also review some frequently asked questions that arise from these types of disputes.

The family and divorce lawyers at Meridian Law Group assist spouses and parents at every stage of separation, including property division, child support, spousal support, parenting arrangements, relocation matters, protection orders, and domestic agreements designed to reduce future conflict. We proudly represent clients in family law matters throughout British Columbia, including West Vancouver, North Vancouver, Coquitlam, Penticton, Kelowna, Richmond, New Westminster, Burnaby, Surrey, Langley, and White Rock. Contact us online or call (604) 687-2277.

About the Author: Paul Harden

Paul Harden is a Principal at Meridian Law Group in Vancouver. He received his BA in Philosophy from the University of Calgary in 2004 and his Juris Doctor from the University of British Columbia in 2012. He was called to the British Columbia Bar in 2013. Paul’s practice includes estate litigation, business and property disputes, general civil litigation, insurance matters, and serious personal injury claims. He is a member of the Canadian Bar Association, the Law Society of British Columbia, and the Trial Lawyers Association of BC.

About the Co-Author: Mia L. Bottos

Mia L. Bottos is a family lawyer at Meridian Law Group in Vancouver. She obtained her Juris Doctor from the University of Alberta Faculty of Law in 2022 and was called to the British Columbia Bar in 2023. Mia assists clients with a broad range of family law issues, including separation, divorce, complex property division, parenting and contact arrangements, and child and spousal support. She has appeared before BC Provincial Court, the Supreme Court of British Columbia, and in mediation.

This article is for general information only and is not legal advice. For advice on your specific situation, please contact Meridian Law Group.