JP Boyd: More than "merely" less than "grossly", "significant unfairness" and the Family Law Act

The phrase “significantly unfair” is new to the law on domestic relations in British Columbia. Whatever “significantly unfair” might turn out to mean, the concept is of critical importance under the new Family Law Act [see Third Reading of Bill 16-2011 on the BC Legislative Assembly's website], as “significant unfairness” is the test that must be met before the court may:

1. divide family property or allocate family debt other than equally, under s. 95(1)

“The Supreme Court may order an unequal division of family property or family debt, or both, if it would be significantly unfair to equally divide family property or family debt, or both …”

2. divide excluded property, under s. 96(b);

“The Supreme Court must not order a division of excluded property unless… it would be significantly unfair not to divide excluded property …”

3. set aside agreements dealing with property and debt, under s. 93(5); and

“… [T]he Supreme Court may set aside or replace with an order made under this Part all or part of an agreement if satisfied that … the agreement is significantly unfair …”

4. set aside agreements dealing with spousal support, including agreements waiving spousal support, under s. 165(5).

“… [T]he court may set aside or replace with an order made under this Division all or part of an agreement if satisfied that … the agreement is significantly unfair …”

Fairness by Degrees

The Family Law Act is chock full of new language that will require the court’s interpretation. One of the first, I suspect, will be to determine what it is that “significant” adds to the meaning of “unfairness.”

“Unfair” without a modifying adverb is used at s. 65 of the Family Relations Act, RSBC 1996, c 128, where it marks the threshold that must be passed before the court reapportions property. “Grossly unfair” is deployed at s. 96 of the FRA with respect to the reduction of arrears of child support or spousal support, and we are all familiar with the case law dealing with “grossly” as a modifier of “unfairness” in this context; see Semancik v. Saunders, 2011 BCCA 264.

The plain language meaning of “significant” suggests that the threshold of “significantly unfair” is a higher standard more burdensome than mere “unfairness,” yet less burdensome than the zenith of “gross unfairness.”

notable, weighty, important for what it indicates: The Century Dictionary and Cyclopedia, The Century Co., 1897, New York

noteworthy, important, consequential: The Concise Oxford English Dictionary, Clarendon Press, 1995, Oxford

important, momentous: The Imperial Dictionary, The Gresham Publishing Co., 1906, London

sufficiently great or important to be worthy of attention, noteworthy: Dictionary 2.2.1, my MacBook

Few clues as to the legislature’s intent are found in the Family Law Act itself. The factors set out in ss. 93(5) and 165(5) are of course mutually consistent but have nothing in common with the factors set out at ss. 95(2) and 96(b), and of the two factors listed at s. 96(b), only one, the duration of the spousal relationship, makes an appearance in the nine specific factors described at s. 95(2) [roll mouse over here to see the nine factors]; see the excellent discussion of statutory construction by reference to related provisions in Sullivan on the Construction of Statutes [KL35.1.D75 2014]. As a result, it will likely be necessary to look beyond the new act for guidance.

“Significantly unfair” is used in only one other British Columbia statute, the surpassingly dull Strata Property Act, SBC 1998, c 43. In the context of owners’ suits against strata corporations, s. 164(1) provides as follows:

On application of an owner or tenant, the Supreme Court may make any interim or final order it considers necessary to prevent or remedy a significantly unfair
(a) action or threatened action by, or decision of, the strata corporation, including the council, in relation to the owner or tenant, or
(b) exercise of voting rights by a person who holds 50% or more of the votes, including proxies, at an annual or special general meeting.

Dollan v. Strata Plan BCS 1589, 2011 BCSC 570 helpfully summarizes the law on the interpretation of “significantly unfair”, at paragraph 24:

“The phrase ‘significantly unfair’ in s. 164 has been described in Reid v. Strata Plan LMS 2503, 2003 BCCA 126 as ‘burdensome, harsh, wrongful, lacking in probity or fair dealing, or has been done in bad faith’, ‘unjust or inequitable’, or unreasonable. Moreover, the word ‘significantly’ means that a court should only interfere if the actions or decision of a strata council results in ‘more than mere prejudice or trifling unfairness’ …”

In Gentis v. Strata Plan VR 368, 2003 BCSC 120, the court held that, at paragraph 28:

“… I understand the use of the word ‘significantly’ to modify unfair in the following manner. Strata Corporations must often utilize discretion in making decisions which affect various owners or tenants. At times, the Corporation’s duty to act in the best interests of all owners is in conflict with the interests of one particular owner or group of owners. Consequently, the modifying terms indicates that the court should only interfere with the use of this discretion if it is exercised oppressively, as defined above, or in a fashion than transcends beyond mere prejudice or trifling unfairness.

[29] I am supported in this interpretation by the common usage of the word significant, which is defined as ‘of great importance or consequence’: The Canadian Oxford Dictionary.”

In Strata Plan VR1767 v. Seven Estate Ltd., 2002 BCSC 381, the court emphasized the behavioural dimension of significant unfairness, at paragraph 47:

“The meaning of the words ‘significantly unfair’ would at the very least encompass oppressive conduct and unfairly prejudicial conduct or resolutions. Oppressive conduct has been interpreted to mean conduct that is burdensome, harsh, wrongful, lacking in probity or fair dealing, or has been done in bad faith. …”

Although some caution must be extended in recognition of the imbalance of power I expect to be characteristic of proceedings by owners against strata corporations, the general tenor of the case authority leans toward a definition of “significant unfairness” which sets the threshold somewhere beyond the “mere prejudice or trifling unfairness” mentioned in Reid v. Strata Plan LMS 2503, 2003 BCCA 126.

Whatever “significant unfairness” may ultimately be found to mean, the varying factors prescribed by ss. 93, 95, 96 and 164 to guide the court in its consideration of a case will likely result in the formulation of three different tests, each built up on a notion of unfairness that is more than merely unfair but less than grossly unfair.