1.877.602.9900BC Court of Appeal gives very modest reapportionment of BC family assets to husband in short marriage.
In Wolowidnyk v. Wolowidnyk, a
recent British Columbia Court of Appeal decision, the Honourable Madam
Justice Kirkpatrick reapportioned the matrimonial home in favour of the
husband. This order was paired with a lump sum
spousal support award of $25,000 in order to ensure the wife’s future
economic self-sufficiency.
At the time of marriage Mrs. Wolowidnyk was 53
years old and Mr. Wolowidnyk was 62 years old. The parties had only
been married for about five years when their relationship broke down.
Both parties were employed at the time of marriage but by the end of
the marriage he had retired and she had gone on medical disability for
tinnitus in her ear. Both parties held RRSPs, pensions and some
savings. The parties had lived separate and apart for approximately 18
months prior to trial. At the time of the marriage Mr. Wolowidnyk owned two residential properties in
During the marriage, the parties lived in one of the properties
initially owned by Mr. Wolowidnyk (“the matrimonial home”) which they
then held in joint tenancy. Over the course of the marriage Mr.
Wolowidnyk sold his second piece of property and Mrs. Wolowidnyk sold
her rental property as well.
At trial, the uncontested evidence was that Mr.
Wolowidnyk had continued to make all of the mortgage payments and pay
all of the property taxes on the matrimonial home. Yet the trial judge
found that Mr. Wolowidnyk was “an extremely sanctimonious and arrogant
man with a great facility for exaggeration. I have great difficulty
accepting any of his testimony.” Additionally, in applying the Family Relations Act,
the relevant legislation for property division upon marriage breakdown,
the trial judge failed to consider the date on which the matrimonial
home had been acquired – some 14 months prior to the marriage. This
failure, according to the Court of Appeal, indicated that the trial
judge had committed a “palpable and overriding error”. As such, the
Court of Appeal was at liberty to reassess the facts of the case.
They found that the trial judge appeared to have disbelieved the crucial and uncontested
fact that Mr. Wolowidnyk had made all of the mortgage and property tax
payments. The Court of Appeal considered the relatively short duration
of the marriage, the length of time the parties had lived separate and
apart, the date when the matrimonial home was acquired, the needs of
each spouse to become or remain economically independent and
self-sufficient, the capital contributions both parties had made to the
matrimonial home, and finally the fact that both parties had preserved,
maintained and improved the home. In light of all these factors, the
Court of Appeal found that “an equal division of the matrimonial home
would be unfair.” They ordered that “the fair reapportionment of the
matrimonial home is 60/40 in favour” of the husband. They further
ordered that the home be listed for sale immediately “with the parties
to have joint conduct of the sale.” Mr. Wolowidnyk was to continue to
make the mortgage payments and was “entitled to reimbursement for the
principal portion of all such mortgage payments from
Because the Court of Appeal had altered the trial
judge‚Äôs decision vis-?†-vis the matrimonial home, they awarded lump sum
spousal support in the amount of $25,000 to be paid within one month of
the variation order to bridge the period of time during which Mrs.
Wolowidnyk’s income was uncertain as she awaited her entitlement to all
of her pension income. This award would ensure her economic
self-sufficiency.