What is the test for equal division of assets under section 65 of the Rules of Apportionation?

British Columbia, Canada

The following excerpt is from J.E.H. v. P.L.H., 2013 BCSC 752 (CanLII):

The onus is on the party seeking reapportionment to establish that the equal division of the family assets would be unfair having regard to the factors enumerated in section 65: Toth v. Toth at para. 62.

The rationale for the court first addressing property issues before support is set out by Prowse J.A. in Tedham v. Tedham, 2005 BCCA 502 at para. 67: . . . in approaching issues of division of property and spousal support, the court should first address the division of property, including any issue of reapportionment, and then address the issue of spousal support. One practical reason for this approach is that the division of property, particularly where there is reapportionment, will affect the relative condition, means and needs of the parties, not the least because it may generate further income in the hands of the payee.

There can, however, be an interrelationship between apportionment of family assets and spousal support. Distribution of the economic consequences can be achieved by spousal and child support, by the division of property and assets or by combination of the two: Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813 at 849; Hartshorne v. Hartshorne, 2004 SCC 22 at para. 54.

The different goals of reapportionment on the one hand and spousal support on the other were described this way in T.M.S. v. E.S.: Thus the economic disadvantage the plaintiff has suffered has both a short-term and a long-term impact. The short-term impact can be addressed by spousal maintenance, but the long-term impact should be addressed by a reapportionment of assets. See also Lodge v. Lodge at paras. 18-21.

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