Legitimate Expectations of Married Women
British Columbia’s family law landscape continues to evolve, particularly when it comes to how the courts apply the concept of “legitimate expectations” under section 95(2)(i) of the Family Law Act. While the courts have recognized that legitimate expectations may be a relevant factor in determining whether an equal division of family property would be “significantly unfair” for common-law couples, the same approach has not yet been formally endorsed for married couples.
This raises an important and unresolved question for family law lawyers and clients alike:
Why should married and unmarried couples be treated differently when it comes to their legitimate expectations?
At Richter Trial Lawyers, we have argued this issue before both the Supreme Court and the Court of Appeal, first in BLS v DJS, 2021 BCSC 1311, and more recently in Shutiak v Sperring, 2023 BCCA 54.
This blog argues that married and unmarried couples must be treated the same under the Family Law Act. Either legitimate expectations apply to both married and unmarried couples or they should apply to neither. The court should not treat them differently.
What About the Legitimate Expectations of Married Women?
The Family Relations Act, which governed property division before the Family Law Act came into force in 2013, provided married spouses with a presumptive 50% entitlement to family property. Many married women lived the majority of their marriages under that legislative regime and built legitimate expectations around it.
If courts are willing to consider the legitimate expectations of common-law partners who lived together under the Family Relations Act or the early years of the Family Law Act, it stands to reason that married spouses, particularly married women, should have their expectations recognized as well.
To do otherwise creates an unfair and inconsistent legal landscape where the same factual circumstances produce different results depending solely on marital status.
The Purpose of the Family Law Act
The Family Law Act was intended as remedial legislation. It was designed to modernize family law, promote fairness, and eliminate outdated distinctions between married and unmarried couples. Recognizing legitimate expectations for one group but not the other runs contrary to this purpose.
In the appeal of Shutiak v Sperring, we acted for Ms. Barbara Shutiak, who cross-appealed on this very point. We argued that “legitimate expectations” should not be used as a discretionary factor under the Family Law Act because it undermines the Act’s remedial intent and reintroduces inequities the legislation sought to remove.
Justice Norell, in her reasons, analyzed the use of “legitimate expectations” under section 95 and expressed caution about its scope and relevance. Her reasoning was later endorsed by Justice Butler in the Court of Appeal’s decision in Hannon v Hopson, 2022 BCCA 314.
Justice Butler’s endorsement reinforces that while “legitimate expectations” may help explain the context of a couple’s relationship, they cannot override the legislative framework or the remedial intent of the Family Law Act.
A Call for Consistency
The courts’ treatment of legitimate expectations continues to evolve. However, the principle of equal treatment under the law demands that married and unmarried couples not be subject to different standards when dividing family property.
If legitimate expectations are to remain a relevant consideration under section 95(2)(i), then they should apply equally to both. If not, then the factor should be excluded altogether to preserve the clarity and fairness the Family Law Act was designed to achieve.
