BC Court of Appeal overturns reapportionment of property to one partner after separation

Equal division of property, all of it to one individual both 'significantly unfair'

BC Court of Appeal overturns reapportionment of property to one partner after separation

In a case that involved an alleged immigration marriage fraud, the British Columbia Court of Appeal has disallowed the reapportionment of a residential property’s appreciation value entirely to one party as “significantly unfair.”

In He v. Guo, 2022 BCCA 355, Benjamin He and Vivian Guo cohabited in a residence that Guo owned. The couple separated in early 2018 and a reapportionment order of the appreciation value of the property was granted in Guo’s favour. In effect, the appreciation of the residence from the time of the commencement of co-residency to the time of trial – $360,000 – was granted entirely to Guo.

Guo, who was initially admitted to Canada on a visitor visa, obtained permanent resident status in 2017. Benjamin He asserted that the grant of permanent residence status indicated that Guo’s cohabitation with him was insincere and merely a design to advance her permanent residence status. He submitted a document titled, “Immigration Marriage Fraud Report,” asserting that the parties’ marriage-like relationship was a product of Vivian Guo’s fraud. 

Presumption of equal sharing

Under the Family Law Act, there is a presumption of equal sharing of family property between cohabiting spouses. However, the presumption would not apply if equal division of property would be “significantly unfair.” After considering a number of factors, the trial judge concluded that equal division of the property would be substantially unfair and that the appreciation in the value of the residence should be Guo’s alone.

Shortness of the relationship

The judge considered that when the relationship is short, that factor by itself may tend to detract from equal sharing and the converse is true when the relationship is lengthy. In this case, the parties started cohabiting in 2014 and they separated in 2018. The appeal court agreed with the trial judge that the shortness of the parties’ relationship was a factor that weighed against equal division of the property in issue.

Failure to disclose assets

The trial judge found that He had failed to fully disclose his assets, including property in Wuhan, China. The appeal court agreed that failure to disclose assets may lead to serious consequences in family litigation. The court said that it was open to the judge to assess the non-disclosure as a relevant consideration that may lead to significant unfairness. The non-disclosure also provided a proper basis for the judge to rule against presumptive equal sharing of the appreciation of Guo’s residence. However, the appeal court also warned that, “just because it was a proper consideration in assessing significant unfairness does not mean it mandates an order for complete reapportionment.”

Immigration Marriage Fraud Report immaterial

The trial judge considered Benajmin He’s filing of the Immigration Marriage Fraud Report as a factor that led to significant unfairness under the Family Law Act. The judge found that by filing the false Immigration Marriage Fraud Report, Benjamin He had deliberately attempted to cause financial harm to Guo by causing the revocation of her immigration status.

The appeal court found that the filing of the report, coupled with its accusatory content which the judge found to be untrue, was sufficient to permit the judge to conclude malicious intent on He’s part. However, the appeal court also ruled that the filing of the malicious report was not an appropriate consideration in ordering reapportionment in Guo’s favor.

While Guo testified that the filing of the Immigration Marriage Fraud Report had a psychological and emotional impact on her, there was no evidence before the court that it had any negative financial consequence or otherwise hindered her in attaining economic self‑sufficiency. As a result, the court ruled that the judge made an error in considering the fraud report as a factor that led to significant unfairness and which justified granting reapportionment entirely in Guo’s favor.

The appeal court agreed that presumptive equal sharing of property did not apply in this case but found that the trial judge committed an error in allowing reapportionment entirely in Guo’s favour. The court allowed reapportioning the appreciation in the property in issue 80 percent to Vivian Guo and 20 percent to Benjamin He.

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