Can Collaborative Lawyers be Found Negligent For Not Setting a Trial Date?

by Rena Chen and Jennifer Lin

In the recent decision Banh v Chrysler, 2022 BCCA 74 (“Banh v Chrysler”), the Court of Appeal overturned the trial judge’s finding that it would be significantly unfair to divide property equally.

The husband owned 3 rental properties in his sole name that experienced a significant increase in value after the separation. The husband was solely responsible for his rental properties.

The parties were married on August 9, 2014, started cohabitating in October 2014, and separated on August 9, 2016; however, they did not get to trial until end of December 2019. Essentially, this was a 2 year relationship, but it took almost 3.5 years to get to trial.

The trial judge ordered an unequal division of family assets by using the date of separation (instead of the date of trial) as the valuation date based on a number of factors, all of which the Court of Appeal determined were outside the scope of s. 95 of the Family Law Act (the factors that could lead to significant unfairness and unequal division) except for the short duration of the marriage. The Court of Appeal went on to conclude that the length of the relationship alone is not enough to support an unequal division of family assets, and awarded the wife one-half of the increase in value of the husband’s rental properties to the date of trial.

This case raises a few troubling conclusions:

1. A short relationship alone is no longer enough to qualify as significantly unfair; and

2. In situations of short relationships where one spouse owns more property than the other, this case effectively provides an incentive for the non-property owning spouse to delay trial for as long as possible (it is important to note that the husband’s lawyer raised this exact argument at the appeal, and the Court of Appeal dismissed the argument by simply stating that the Supreme Court Family Rules allows a party to set down trial). Meanwhile, the property-owning spouse faces the risk of owing the other spouse more and more money as time passes without resolution, especially when considering the volatile nature of the Vancouver real estate market.

We believe collaborative family lawyers are now faced with a difficult question: should we be alerting our own Mr. Banhs of the importance of setting a trial date as soon as possible, and if we do not, would it be grounds for a negligence claim? How does this fit into the collaborative framework?