How have courts dealt with the issue of equal division of assets under s.65(2) of the Family Law Act?

The claimant also referred the court to the case of K.D. v. N.D. 2009 BCSC 995, a decision of Madam Justice Fisher. At paras 93 to 99 of the judgment, Fisher J. dealt with the wife’s claims for both reapportionment and a share of a non-family asset. The husband owned a one-third interest in a condominium, which was not a family asset, and in which his mother was living. His mother and brother owned the remaining interest in the property. The court was asked by the wife to take into account the husband’s interest in the condominium, in deciding whether it would be unfair to the wife, to divide the family assets equally. Fisher J. cited Beese v. Beese 2008 BCCA 396, and implicitly held that a non-family asset could be used (under s.65(2)) to alleviate unfairness, but could not be relevant to the issue of whether equal division of the family assets would be unfair (under s. 65(1)). She decided that the husband’s ownership of part of the condominium could only become relevant if the court first decided that equal division of the actual family assets would be unfair to the wife, and then also decided that the unfairness could not be remedied by reapportionment. In the end, Fisher J. disregarded the husband’s one-third interest in the non-family asset, because she was not persuaded that equal division of the family assets would be unfair.