The seminal case of REMMEM and its conclusion of protecting exclusions despite changing ownership, takes hold – Surrey Excluded Property Lawyer James Cudmore of MacLean Law Confirms. Contact us to understand why Surrey family property and Surrey excluded property are treated differently in Surrey BC.

More and more excluded property decisions add to the overwhelming trend in BC property exclusions being preserved for our Surrey excluded property lawyer team. Two new BC Supreme Court cases stand for the proposition that changing the ownership of an excluded property does not affect the exclusion of the starting value of this property from sharing on marriage breakdown.

Surrey Excluded property lawyer Susan Justice

Just days before the release of the Honourable Madam Justice Young’s decision in JB v SC 2015 BCSC 2136 which Lorne MacLean QC, Surrey Excluded Property Lawyer, summarizes in his blog, comes the decision of Shih v. Shih 2015 BCSC 2108. The analysis of the Honourable Madam Justice Warren is extensive and very helpful on the issue of Surrey excluded property. The current score in favour of Surrey excluded property remaining protected, despite later transfers between spouses, is solidifying in advance of a BC Court of Appeal ruling on the issue, stands at a score of 5 cases to 2.

Our Surrey excluded property lawyer teams feels the law now seems clear that there is a consensus emerging: the analysis in Remmem that Surrey excluded property remains excluded despite transfers between spouses after receipt, is to be preferred. The majority of the court decisions on Surrey Excluded property is that property brought into a marriage or later received by one spouse solely by inheritance or gift will remain Surrey excluded property even if it is later placed in joint names or transferred into the sole name of the other spouse. The majority of decisions understand transfers may occur to protect the asset from creditors or for estate planning reasons.

The Court in Shih on the issue of Surrey excluded property held as follows:

[57]       There were conflicting lines of authority with respect to whether this tracing provision applies when excluded property is transferred into the name of the other spouse or into the spouses’ joint names. In Remmem v. Remmem, 2014 BCSC 1552, and in P.G. v. D.G., 2015 BCSC 1454, the court concluded that such a transfer did not extinguish the right of the transferor to claim the exclusion. In Wells v. Campbell, 2015 BCSC 3, and V.J.F. v. S.K.W., 2015 BCSC 593, the court came to the opposite conclusion and held that the presumption of advancement applied to the transfer with the result that the exclusion is lost. Both parties in this case urged me to adopt the approach in Remmem and P.G.

[58]       In Andermatt v. Tahmasebpour, 2015 BCSC 1743, Mr. Justice Pearlman recently concluded that he should follow the approach in Remmem and P.G. As he explained at para. 51:

Where judgments of the court conflict, a judge who must choose between them should follow the judgment which is later in time if that judgment was pronounced following a full consideration of the earlier judgment: Richard Niebuhr Enterprises Ltd. v. Vancouver (City) Board of Variance (2006), 60 B.C.L.R. (4th) 135 (S.C.) at para. 38, aff’d 2007 BCCA 528, supp. reasons 2007 BCCA 593, leave to appeal to S.C.C. refused [2008] 1 S.C.R. xiii. The judgment in P.G. is the most recent decision and was pronounced following a full and careful consideration of the earlier judgments. The court in P.G. provides a compelling analysis of the effect of s. 85(1)(g). Further, I share the view of the court in P.G. that the approach in Remmem is consistent with the objects of the FLA.

[59]       I agree with that analysis and conclude that a transfer of excluded property from one spouse into the name of the other spouse or into the spouses’ joint names does not extinguish the right of the transferor to claim the exclusion.

In Shih, both the wife and the husband claimed excluded property and both were successful to an extent. However, on the evidence the wife was able to prove more excluded property than the husband.

Our MacLean Law Surrey excluded property case lawyers have handled cases involving tens of millions of dollars at and we are very experienced in dealing with both sides of this argument. Call BC’s largest family law team with 17 family law lawyers located in Surrey, Vancouver, Fort St John and Kelowna BC toll free at 1-877-602-9900.

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Surrey Child Support Lawyers

When it comes to child support, our Surrey Child Surrey lawyers know it’s current income that matters for a proper Surrey child support determination.

Surrey Child Support Lawyers -MacLean Law Surrey

What happens when a payor parent’s income increases and he or she refuses to disclose the increase to the recipient parent? Is the recipient parent entitled to “go back in time” to get the shortfall between what was paid and what ought to have been paid based on the payor’s actual income? Hiring the top Surrey child support lawyers at Maclean Law will ensure you stay on top of what the proper child support amount is. Claiming a correction back in time means you are waiting for the proper support for your Surrey child.

Laura Allen, one of our soon to be new associate Surrey Child Support Lawyers provides this great explanation on how proper Surrey child support is calculated. This issue was recently addressed in Biggs v Biggs 2015 BCSC 2094 (“Biggs”). In Biggs, the payor parent failed to disclose an increase in his annual income and continued to pay child support pursuant to an agreement the parties had drafted using a “do-it-yourself” legal kit, which neglected to provide for an annual review of their respective incomes. The recipient parent, whose income was significantly lower than the payor parent’s income, requested the court revisit the amount of child support payable based upon the parties current incomes.

This is what the court had to say:

[43]        Basically, the principle is that parents have an obligation to support their children in a way that is commensurate with their incomes. This parental obligation, like the children’s concomitant right to support, exists independent of any state or court order. To the extent the federal regime has eschewed a purely need-based analysis, this free-standing obligation has come to imply that the total amount of child support owed will generally fluctuate based on the payor parent’s income. Thus, under a federal scheme, a payor parent who does not increase his/her child support payments to correspond with his/her income will not have fulfilled his/her obligation to his/her children.

[44]        This obligation imposes a joint obligation on both parents to ensure that disclosure is made on a yearly basis. That disclosure should be requested by the recipient parent and should be proffered by the payor parent. It is a joint responsibility. But if one parent does not do his or her part in ensuring this takes place, then the court should step in.

Financial disclosure is a continuing obligation

When it comes to child support, the obligation to disclose one’s income is a requirement. By failing to voluntarily disclose increases in his annual income and by continuing to evade disclosure after repeated requests from the recipient parent, the court held that the payor parent had engaged in “blameworthy conduct”. Accordingly, the court made an order for a retrospective increase in child support payments based upon the payor’s actual income from the date the recipient parent first raised concerns over the adequacy of support received.

An interesting take away from the Biggs case is the importance of making a request for financial disclosure.  A court will be more receptive to the request for retroactive child support, notwithstanding that a written agreement was in place, if the recipient has made a request in writing for disclosure.

Are you getting enough child support?

MacLean Law’s Surrey Child Support Lawyers are here to help ensure you are receiving the correct amount of child support. If a payor parent is refusing to provide you with information regarding his or her income, our Surrey Child Support Lawyers can help you take the steps you need to get the job done.

Not sure whether you are getting or paying the correct amount of child support? Check your payments using our free child support calculator (http://macleanfamilylaw.ca/support-calculators/) or contact our Surrey Child Support Lawyers to ensure you are receiving or paying the correct amount of support.

Our Surrey Child Support Lawyers are skilled all aspects of child support law, whether it’s bringing or responding to a claim to vary support.  Contact one of our top Surrey Child Support Lawyers on 604- 576- 5400 if you are interested in hearing more about how our Surrey Child Support Lawyers can assist you.

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Vancouver High Net Worth Property Lawyers Explain The Presumption of Advancement Seems to have been Extinguished by the BC Family Law Act

The Vancouver high net worth property lawyers at MacLean Law routinely deal with division of excluded property and family property in the tens of millions. Lorne MacLean, QC recently earned accolades as Chair of the PBLI family law similar “The Grey Divorce” and he and Nassim Nasser published the very popular 2015 paper on division of excluded property and family property as well as on how to divide or protect your high net worth property holdings. Our Vancouver High Net Worth Property Lawyers  recommend a number of strategies to preserve and protect the valuable assets and companies of our clients. Meet with us and request a copy of the popular publication from us.

Lorne MacLean QC, Vancouver high net worth property lawyers Founder at MacLean Law

The top Vancouver high net worth property lawyers at MacLean Law have watched with interest the legal “civil war”that  has been going on in BC over what happens to excluded property that was brought into marriage by one spouse or gifted to or inherited by one of them alone during the marriage, which is then later placed in joint names or solely in the name of their spouse. More cases are now saying it does not matter how an excluded property is registered after it has been received by one spouse by gift or inheritance  or owned solely by one spouse before the relationship started. Our experienced Vancouver high net worth property lawyers know this issue impacts thousands of separating spouses who need our Vancouver high net worth property lawyers help in protecting or dividing their hard earned high net worth wealth.

Today, 5 cases say the exclusion (no sharing of the starting value of excluded property) is unchanged by a subsequent registration of the property in joint names or the other spouse’s name alone. Only 2 BC cases say if you change ownership of excluded property you cannot claim the benefit of an exemption from sharing the starting value. Our BC Court of Appeal is ready to decide this issue in the next three months. Vancouver high net worth property lawyers can advise you how to deal with property at the start and end of a relationship. Don’t register property you brought into a relationship, that you inherited or were gifted solely without talking to Lorne MacLean,QC and the highly rated Vancouver high net worth property lawyers at MacLean Law.

In J.B. v. S.C the Court gave a very thorough primer on the conflicting lines of authorities and the policy reasons for keeping the exclusion for excluded property even after property ownership is changed by the recipient spouse as follows:

[70]         There are conflicting authorities in this court as to whether or not the Family Law Act alters the presumption of advancement between married spouses.

[71]         The conflicting line of authorities is discussed and analysed in detail by Madam Justice Fenlon in P.G. v. D.G, 2015 BCSC 1454.

[72]         In Remmem v. Remmem, 2014 BCSC 1552, the husband used the proceeds of excluded property to purchase property in joint tenancy with his wife.  The trial judge concluded that the purchase of property held in joint names using the proceeds of excluded property did not reduce the value of the exclusion.  He concluded at para. 52:

When I consider these difficulties, I conclude that the tracing provisions in the FLA, at least when applied to the circumstances in this case, are to be applied without considering or applying the presumption of advancement between married spouses.  In other words, none of the excluded property – the fair market value of the Greaves Road property in October 1990 – was gifted to Ms. Remmem when the Middle Point property was placed in joint names.  Mr. Remmem remains entitled to the full value of the exclusion of $65,000.

[73]         The opposite conclusion was reached by the trial judge in Wells v. Campbell, 2015 BCSC 3.  In that case, the husband owned a home before the parties married and transferred that home into joint tenancy with his wife five years before the parties separated.  At para. 32 of the decision, the trial judge decided that the home was transferred as a “perfected inter vivos gift” that could not be revoked.  He determined that the Family Law Act did not alter the law of inter vivos gifts, so the presumption of advancement still applied.

[74]         The issue of whether excluded property lost its status as excluded property once it was transferred to a spouse was considered by Justice Walker in V.J.F. v. S.K.W., 2015 BCSC 593.  In that case, the husband used an inheritance of $2 million which was excluded property to purchase and register a house solely in his wife’s name.

[75]         The court did analyse the intention at the time of the registration and found that it was part of a legitimate creditor‑proofing exercise (at para. 23).

[76]         Relying on Remmem, the husband argued that the $2 million inheritance was excluded and traceable into the property held by the wife.  The wife relied on Wells, arguing that once the title to the house was registered, the presumption of advancement applied.

[77]         The trial judge in V.J.F. endorsed Wells.  At para. 69, he noted that Wells had confined Remmem to its facts and stated:

In this case, when excluded property owned by one spouse was comingled with funds derived from family property to purchase an asset that is placed solely in the name of the other spouse in order to immunize it from potential creditors, the exclusion is lost because the disposing spouse gifted it to the other. [Emphasis added.]

[78]         Justice Walker notes at para. 63 that s. 104(2) of the Family Law Act provides that any rights granted under the Act are in addition to and not in substitution for rights under equity or any other law.  He concludes, as a result of that section, that the legislators did not intend to annul the presumption of advancement.

[79]         At para. 67 of P.G. Madam Justice Fenlon considered the conflicting cases and added this to the analysis:

Neither case addressed s. 85(1)(g), the tracing provision which expressly provides for the exclusion of property derived from excluded property or the disposition of excluded property.

[80]         She noted that the presumption of advancement extinguishes the right the Family Law Act recognises to allow a spouse to retain excluded property even if it is mingled with the property of the other spouse.  The presumption of advancement is therefore inconsistent with the objects of the Family Law Act.

[81]         Her ladyship quotes the objects of the Family Law Act from the British Columbia Ministry of Attorney General’s White Paper on Family Relations Act Reform: Proposals for a new Family Law Act, (2010), online:<http://www.ag.gov.bc.ca/legislation/shareddocs/fra/Family-Law-White-Paper.pdf>.

[82]         The reason for introducing an excluded property regime was described as follows (at p. 81):

The most compelling reasons for moving to an excluded property regime are to make the law simpler, clearer, easier to apply, and easier to understand for the people who are subject to it.  The model seems to better fit with people’s expectations about what is fair.  They “keep what is theirs,” (such as pre-relationship property and gifts and inheritances given to them as individuals) but share the property and debt that accrued during their relationship.  Where one spouse enters the relationship with more assets than the other, providing that spouses share the increase in the value of the excluded property promotes a fair outcome…

Changing to an excluded property scheme removes the broad judicial discretion from the asset identification stage and leaves some discretion at the distribution stage.  This change is designed to make it easier to identify property subject to division and, therefore, reduce the potential for disagreement.

[Emphasis added.]

[83]         Finally, Justice Fenlon distinguishes Wells and V.J.F. because they do not refer to the overall scheme of the Family Law Act on marriage breakdown.  During the marriage the presumption of advancement applies, for example, in the case of the husband’s death, but on marriage breakdown, a new property rights regime takes over:

[79]  On marriage breakdown, however, a new property rights regime descends as between the spouses, just as it did under the former FRA.  The rights of third parties vis-à-vis the property held by the spouses remain unaffected (s. 82), but between the spouses, all changes.  Whether property is held solely in the wife’s name, solely in the husband’s name, or jointly, it is all subject to the scheme of division created by Part 5 of the FLA (s. 84(1)).  Some of that property is to be excluded under s. 85(1) and all the rest is presumptively to be divided equally regardless of whose name it is in at the date of separation.

[84]         Most recently, in Andermatt v. Tahmasebpour, 2015 BCSC 1743, Mr. Justice Pearlman considered Remmem, Wells, V.J.F., and P.G.  In Andermatt, Pearlman J. decided that he should follow Remmem and P.G., because P.G. was the most recent jurisprudence to give full and careful consideration to all of the authorities, and he agreed with Fenlon J. that the approach in Remmem was most consistent with the objectives of the Family Law Act.

Does the presumption of advancement apply to common‑law spouses?

[85]         The question of whether the presumption of advancement applies to common law spouses is unclear, and is in need of appellate consideration.  In Chaung v. Wong, 2012 BCSC 233 at paras. 12-16, Madam Justice Maisonville canvassed a number of cases to show the uncertainty in this area of the law and concluded that the law is still unsettled.

[86]         Professor Donovan Waters suggests that on a principled basis, the presumption of advancement should apply equally to married and common law spouses (Donovan W.M. Waters, Mark R. Gillen, & Lionel D. Smith, Waters’ Law of Trusts in Canada, 4th ed. (Toronto: Carswell, 2012) (“Waters”) at 413).  However, Waters also says that the possibility of this development has been overtaken by the overall decline in the use of the presumption of advancement after the Second World War, which was followed by statutory abolitions in many jurisdictions (e.g., Family Law Act, R.S.O. 1990, c. F.3, s. 14).

Conclusion on presumption of advancement

[87]         In my view, if the presumption of advancement is going to continue to apply to spouses in British Columbia, it should apply equally to common law spouses.  The Family Law Act recognizes that married and unmarried spouses have similar responsibilities and obligations to one another, and I see no principled basis for restricting the application of the presumption of advancement to married spouses only.  This accords with the view that Mr. Justice Affleck expressed at para. 14 of McNamara v. Rolston, 2013 BCSC 2115, where he said:

[14] The respondent refers to substantial changes in society to the way that marriage and property rights are understood. She argues that although the two were viewed as attached in the past, this is no longer the case. In my opinion, the doctrine of presumption of advancement remains a part of the law of this province but insofar as it applies to marriage, it is no longer confined to those who are formally married to each other. It may be applied in appropriate circumstances to what are frequently called “common law relationships” or to “marriage-like relationships”, the latter being a basis for the definition of “spouse” found in the Family Law Act, S.B.C. 2011, c. 25. [Emphasis added.]

[88]         In my opinion, the line of authority established by Remmem, P.G., and Andermatt should be followed and the presumption of advancement should not be applied to the division of property under theFamily Law Act after matrimonial breakdown.  I agree with Fenlon J. and Pearlman J. that the application of the presumption of advancement carries consequences that would frustrate the purposes of theFamily Law Act, and is not consistent with the objectives of that legislation.  Those are to make the law simpler, clearer, easier to apply to an easier to understand for the people who are subjected to it.  (Family Law White Paper on Family Relations Act Reform: Proposals for a New Family Law Act, (2010) at paragraph 76).

[89]         The inconsistency between the presumption of advancement and the property division scheme under the Family Law Act is apparent both in that it extinguishes rights under the tracing provisions of s. 85(1)(g), and that it creates the possibility that married and unmarried spouses will be treated differently, as the law is currently unsettled as to whether the presumption of advancement applies to common law spouses.

[90]         If I am wrong, and the presumption of advancement continues to apply under the property division scheme in the Family Law Act, there is evidence that the claimant did not intend to gift the Harold Road property to the respondent, thus rebutting the presumption.  The respondent’s parent’s company paid the purchase price for that property and put it in her name.  Mr. Cragg denies that he did this to shield the property from liability.  He said he did it to facilitate the claimant and the respondent obtaining a construction mortgage.  I assume he meant that if the property was registered in the name of the company then the parties could not obtain a construction mortgage because neither had a legal interest in the property.

[91]         The claimant remembers something about the HSBC mortgage agent recommending registering the property in the respondent’s name to avoid liability but I find that conversation did not influence the parties because the property was already in the respondent’s name.

[92]         The respondent was of the view that once the subdivision occurred and there was a defined lot, the parties would register the lot in their joint names.  The claimant does not respond to this statement and I am not convinced that even if he did agree to do that, it would have extinguished his excluded property.  The claimant was very clear, at least after separation, that the other properties were “his” properties.  The claimant agrees to divide any increase in value but has been clear about protecting his excluded property.  During the marriage there was no contrary intention expressed.  I find that the parties did not talk about excluded and non‑excluded property and there is no evidence of the claimant saying that he was investing the money for the two of them.

[93]         Even the respondent’s parents did not accept a presumption of advancement in favour of their daughter.  After the parties separated they (or their company) commenced an action against the young couple to protect the company from a presumption of advancement of the five‑acre property to their daughter.  I have not seen the pleadings but I am advised by both counsel that they commenced an action to ensure that the subdivision “deal” would still take place.

[94]         It was the respondent’s parents who advanced funds, so if any presumption of advancement existed it would be directed at them.  I am not certain whether it would be available because they purchased the property through their corporation.  In any event, they did not intend to gift the five‑acre lot to their daughter.

[95]         When the claimant paid the respondent’s parent’s company $150,000, I find that he was buying into a family venture.  There was no discussion about who would own the lot.  He was very cognisant of what his contributions were and what hers were.  I find that he did not do anything that would change the character of the excluded property.

[96]         If the respondent’s parents did not recognize the transfer of the five‑acre lot into the respondent’s name as a gift, I find that it would be inequitable to assert such a presumption on the common‑law spouse.  If intention is relevant at all and I suspect, relying on P.G., that it is not, then this evidence convinces me that no one anticipated that this investment was a gift.  I suspect they did not turn their minds to it.

The Vancouver high net worth property lawyers at MacLean Law are pleased to guide you to safe waters and to help you avoid a perfect legal storm that can destroy the financial security you worked hard to obtain. Meet with us before problems occur.

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As top rated BC marriage like relationship lawyers we know the definition of common law relationships and BC marriage like relationships has evolved over the years. Since spousal support and property division now depend heavily on a determination of whether two spouse were in a BC marriage like relationship, also called a common law marriage relationship, we are very interested in the latest BC Court of Appeal case interpreting and defining just what a BC marriage like relationship is for purposes of our new family law Act. Since this new case will guide future trial judges if you are involved in a BC marriage like relationship it is something you need to be aware of as thousands and perhaps even millions of dollars may turn on whether you meet the definition of a BC marriage like relationship. Lorne MacLean, QC leads our marriage like relationship family law team and he can provide guidance if you are entering or leaving a BC marriage like relationship. Call him and BC’s largest group of BC marriage like relationship family lawyers today toll free at 1-877-602-9900. Our offices are located in Fort St John, Kelowna, Surrey and Vancouver.

Danger Alert!

Living together two years in a BC marriage like relationship means the property division rules of the BC Family Law Act apply to you. BC spousal support can be payable inside of this two year limit if a child is born of the marriage like relationship!

Lorne MacLean QC, BC marriage like relationship lawyer

In the BC marriage like relationship dispute of Weber v. Leclerc, 2015 BCCA 492 “the appellant sought a declaration that the parties were not spouses for the purposes of the Family Law Act, on the basis that they had not lived in a “marriage-like relationship”. After evaluating the evidence before her, the judge concluded that the relationship was “marriage-like”, notwithstanding that the couple separated their finances throughout their relationship. The appellant appealed, arguing that the judge misapplied the legal test for a marriage-like relationship, and failed to give proper weight to the appellant’s assertions that she did not intend to live in such a relationship. Held: Appeal dismissed.”

The court looks at a number of factors and the intentions of the parties to see if they were really in a BC marriage like relationship. In the latest case on just what BC marriage like relationship is the court reviewed their past decisions and noted that no one factor is determinative but that a host of factors must be considered as follows:

[7]             The parties have referred to three decisions of this Court that have addressed the scope of definitions of “spouse” similar to the one in the FLA: Gostlin v. Kergin (1986), 3 B.C.L.R. (2d) 264; Takacs v. Gallo (1998), 157 D.L.R. (4th) 623; and Austin v. Goerz, 2007 BCCA 586. It is noteworthy that the cases span a considerable period of time – a significant factor in terms of an expression like “marriage-like relationship”. Social norms surrounding marriage have changed considerably over the years, and it should not be surprising that, along with those changes, evaluations of what relationships are “marriage-like” have also evolved.

 

17]         While the majority in Takacs endorsed the idea that the parties’ intentions are important in determining whether they live in a “marriage-like relationship”, it clarified two important points. First, while Gostlin had suggested that economic dependence is a key element of a marriage-like relationship, the majority in Takacs explicitly recognized that the intention to live in a marriage-like relationship need not include an intention to be financially interdependent. Second, Takacs holds that the intention that is critical is not the intention to be bound by a statutory regime of mutual support, but rather the intention to enter into a relationship similar to marriage. In the context of Takacs, the court saw the issue as one of whether the parties’ intentions in cohabiting were similar to those that might be expected in a relationship of marriage. The key question was whether the couple saw their relationship as one of indeterminate, lengthy duration.

 

[21]         With respect to the question of whether financial dependence or interdependence was a requirement of a marriage-like relationship, Frankel J.A., speaking for the Court, said: [55]      While financial dependence may at one time have been considered an essential aspect of a marital relationship this is no longer so. Today marriage is viewed as a partnership between equals and there is no principled reason why marital-equivalent relationships should be viewed differently. [56]      Mrs. Austin relies on Gostlin v. Kergin … and Takacs v. Gallo …. While the need to examine the financial relationship between the parties is discussed in both, in neither do I find support for the proposition that a marital-equivalent relationship cannot exist absent some level of financial dependence. [57]      Apposite is the more recent decision of the Supreme Court of Canada in M. v. H., [1999] 2 S.C.R. 3, which concerned that portion of the definition of “spouse” in the Family Law Act, R.S.O. 1990, c. F. 3, conferring certain rights on either a man or woman who are not married to each other but who live together in a “conjugal relationship.” In discussing the requirements of conjugal (i.e., marriage-like) relationships, Cory J. indicated that while financial dependence is a factor it is but one of many to be considered: [59]      Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), sets out the generally accepted characteristics of a conjugal relationship. They include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal. While it is true that there may not be any consensus as to the societal perception of same‑sex couples, there is agreement that same‑sex couples share many other “conjugal” characteristics. In order to come within the definition, neither opposite‑sex couples nor same‑sex couples are required to fit precisely the traditional marital model to demonstrate that the relationship is “conjugal”. [Emphasis added by Frankel J.A.] [58]      It is understandable that the presence or absence of any particular factor cannot be determinative of whether a relationship is marriage-like. This is because equally there is no checklist of characteristics that will invariably be found in all marriages. In this regard I respectfully agree with the following from the judgment of Ryan-Froslie J. in Yakiwchuk v. Oaks, 2003 SKQB 124: [10]      Spousal relationships are many and varied. Individuals in spousal relationships, whether they are married or not, structure their relationships differently. In some relationships there is a complete blending of finances and property – in others, spouses keep their property and finances totally separate and in still others one spouse may totally control those aspects of the relationship with the other spouse having little or no knowledge or input. For some couples, sexual relations are very important – for others, that aspect may take a back seat to companionship. Some spouses do not share the same bed. There may be a variety of reasons for this such as health or personal choice. Some people are affectionate and demonstrative. They show their feelings for their “spouse” by holding hands, touching and kissing in public. Other individuals are not demonstrative and do not engage in public displays of affection. Some “spouses” do everything together – others do nothing together. Some “spouses” vacation together and some spend their holidays apart. Some “spouses” have children – others do not. It is this variation in the way human beings structure their relationships that make the determination of when a “spousal relationship” exists difficult to determine. With married couples, the relationship is easy to establish. The marriage ceremony is a public declaration of their commitment and intent. Relationships outside marriage are much more difficult to ascertain. Rarely is there any type of “public” declaration of intent. Often people begin cohabiting with little forethought or planning. Their motivation is often nothing more than wanting to “be together”. Some individuals have chosen to enter relationships outside marriage because they did not want the legal obligations imposed by that status. Some individuals have simply given no thought as to how their relationship would operate. Often the date when the cohabitation actually began is blurred because people “ease into” situations, spending more and more time together. Agreements between people verifying when their relationship began and how it will operate often do not exist. [Emphasis added by Frankel J.A.] [22]         Austin establishes that the question of whether a cohabiting couple are in a “marriage-like relationship” is a question of mixed fact and law that requires a broad approach: [62]      The chambers judge properly took a holistic approach in finding that Ms. Goerz and Mr. Austin “were in a committed, marriage-like relationship for all purposes.”  She had regard to all aspects of their relationship, including that there was minimal sharing of expenses and no commingling of assets. Based on the evidence it was open to the chambers judge to reach the conclusion she did and there is no basis on which this Court can interfere: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33 at para. 22.

[23]         The parties’ intentions – particularly the expectation that the relationship will be of lengthy, indeterminate duration – may be of importance in determining whether a relationship is “marriage-like”. While the court will consider the evidence expressly describing the parties’ intentions during the relationship, it will also test that evidence by considering whether the objective evidence is consonant with those intentions.

[24]         The question of whether a relationship is “marriage-like” will also typically depend on more than just their intentions. Objective evidence of the parties’ lifestyle and interactions will also provide direct guidance on the question of whether the relationship was “marriage-like”.

Our BC marriage like relationship lawyers suggest you meet with us before you enter into a marriage like relationship to see if a cohabitation agreement makes sense to define the rights and obligations that flow from it.

Final Warning!

Living together two years in a Lorne MacLean QC, BC marriage like relationship lawyer means property division rules of the Family Law Act apply to you. Spousal support can be payable inside of this two year limit if a child is born of the marriage like relationship!

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Surrey Family Property Division and Exclusion Property within a Marriage and Common Law Marriage

By Susan Justice

Our Surrey family property division lawyers are constantly tracking the court decisions relating to family property and excluded property division in BC. On separation, Surrey family property division is often a hotly disputed issue and our skilled Surrey property division lawyers negotiate, mediate and litigate on behalf of our clients to ensure the best possible outcome.

Surrey family property division lawyer Susan Justice

Herein lies a cautionary tale as to the continuing effect of the presumption of advancement upon “Excluded Property” under the Family Law Act. Upon separation, the claimant argues that the entire home should be “excluded” family property and should not be divided between the two parties because the claimant owned the home prior to marriage. The respondent argues that the placement of her name on title effectively transferred to her at least half of the property thus making it “included” family property. Therefore, the house should be divided between the two parties. Who is correct?

Individuals who come into a marital relationship with substantial funds, or who receive inheritances during their relationship, have no guarantee that these assets will retain their character as Excluded Property following a breakdown of marriage. Our Surrey Family Property Division lawyers have been warning clients for some time to be cautious with respect to changing ownership of excluded property.

Before we examine the judgment, let’s take moment to clarify the Family Property framework. The Surrey family property division regime  in British Columbia is governed by the Family Law Act. The framework is the same for common-law couples (i.e., have lived together in a marriage-like relationship at least 2 years) and married couples.

In general, the most compelling reasons for moving to an excluded property regime are to make the law simpler, clearer, easier to apply, and easier to understand for the people who are subject to it. The model seems to better fit with people’s expectations about what is fair. They “keep what is theirs,” (such as pre-relationship property and gifts and inheritances given to them as individuals) but share the property and debt that accrued during their relationship. Where one spouse enters the relationship with more assets than the other, providing that spouses share the increase in the value of the excluded property promotes a fair outcome.

Presumption of Advancement

In layman’s terms, the “presumption of advancement” is a legal principle that essentially states that a transfer of property from one spouse to another is a gift to the receiving spouse to be legally owned by the receiving spouse.

Section 85(1) of the Family Law Act (“FLA”) defines “Excluded Property”, which is exempt from division between spouses after the marriage breaks down: property acquired prior to the beginning of the relationship; inheritances; settlements or awards of damages; insurance policy proceeds; trust property; and property derived from Excluded Property. However, Section 84(2) (g) provides that any increase in value of Excluded Property during the relationship is family property. The increase in value of the “excluded property” is divisible unless the beneficiary can prove that it would be clearly unfair to divide the value gain equally.

J.B. v. S.C.

In this very recent case from November 20, 2015, the parties were common-law spouses who were in an eight-year relationship. The claimant owned property before they began cohabiting. That property was sold and the proceeds of sale were used to purchase two more family homes which were registered in the claimant’s name. When the third home sold, the equity was used to buy an interest in property which had been registered in the respondent’s name. The court was asked by the claimant to consider a portion of the equity in that third home as excluded property. The respondent stated that by virtue of the presumption of advancement, it was not excluded and ought to be divided equally.

Court’s Findings

The courts have been divided on the issue of excluded property. Our Surrey family property division lawyers note the majority of cases by a margin of 5:2 are upholding the exclusion continuing despite changes in ownership.  In this particular case, it was held that the home was excluded family property and was not subject to division between the parties. The court differentiated the case and emphasized that the findings in this case was limited to the specific facts that the court was faced with.

The court declined to divide the excluded property. It was found that the respondent made some modest direct contributions toward the preservation of the excluded property but as a result she was receiving 50% of the increase in value of property purchased with the excluded property. During the medium length relationship, she was pursuing her career and has successfully graduated and significantly increased her income and was therefore, in a better position as a result of the marriage, leaving the relationship with approximately $90,000 of equity, minimal debt and a career.

The Excluded Property debate is far from over and while it is certainly too early to tell whether this case may be appealed; for the time being, spouses who have property that qualifies as Excluded Property should proceed cautiously when deciding whether to transfer any portion to their partner. In closing, the division of Family Property is complicated and it is strongly advised that you receive independent legal advice before signing any agreements or agreeing to any consent orders. For assistance with this and other family law issues, please contact me or anyone of our other Surrey family property division lawyers  at 604-576-5397.

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Divorce in the South Asian Community

By Susan Justice

Susan Justice – South Asian Family Lawyers – MacLean Law

The South Asian community is a broad and diverse community that varies not only by ethnicity, geographies, history, culture, religion and immigration generations; rather, is further stratified through a Western/Eastern interactive experience.

When it comes to divorce, the experiences of South Asian women and families are vastly diverse. However, it is important to bring to light specific aspects of gender implications that many women face to better understand the legal positions South Asian women in family cases. In order to acknowledge and better understand the implications that South Asian women must face when it comes to divorce, it is vital that we recognize that relationship violence, alienation, and stigma exists in all communities in different facets; and issues of race, class, immigration, language, finances, resources and gender always play a key role.

South Asians are the largest visible minority community in Canada with a close to 8% population of BC. According to Dr. Amrtipal Arora, in his 2009 Faculty of Medicine study at UBC, domestic violence is one of the leading causes of suicide attempts by South Asian women. South Asian women who have experienced domestic violence are also more likely to suffer from depression and anxiety.

Women are very often afraid and debilitated from leaving their husbands, particularly when they have children. South Asian parents are often fearful that it will be difficult for their children to marry or find a partner from a “good” family once families of potential partners for their children will become aware that they come from a “broken” family; as it does negatively affect their family’s reputation in the community as well.

A perceived lack of understanding by the broader community is what deters participants from seeking help. According to the study, cultural expectations, family honour, isolation and the stigma of divorce are some of the major barriers South Asian women face. When women face difficulties in their marriage, tradition dictates that these problems are to be kept within the family and are not to be publicized, as it is shameful to come out of a failed marriage.

Naseeb Kahlon, South Asian Family Lawyer, MacLean Law, Vancouver

Dr. Arora further stipulates that separation or divorce may give a woman’s parents the reputation of raising unstable or unruly girls and affect the marriage prospects of younger siblings. Further, he recognizes that women themselves are often concerned about their own daughters’ eligibility for marriage should they decide to leave. New immigrant women are also often financially, socially and psychologically dependent on their husbands, and many are discouraged from working and if they do work their finances are controlled solely by their husbands. Consequently, when these women are faced with abuse, fear of not being able to survive independently serves as a significant barrier.

South Asian Perspectives on Divorce:

• Divorce is a last resort, taboo, loss of honour and failure
• Somewhat accepted in ‘extreme situations’ in a prolonged period of physical abuse, where often extended family members have attempted to help “reconcile” to no avail.
• Men can remarry easily; women especially with children are not.
• Women are impacted by variability in access to resources, support, education, immigration; decisions vary greatly in relation to these barriers

Family Expectations:

• Often South Asian relationships fit within a social context of immediate family, extended family, and the larger community.
• Predetermined family roles and expectations often reinforce women’s roles as daughter, daughter-in-law, wife, and mother.
• As a result, the decision-making process is extremely influenced by considerations for all levels of the social structure (immediate family, extended family and community).
• Western or individualistic communities value independence, autonomy, and hedonism; versus Eastern or collectivist communities value sacrifice, role-based obligations, family as community and fulfillment of group needs.

Ostracism and Alienation:

• Extended family can play a large role in either aiding divorce and seeking help; or, in dismissing support or divorce options and further endangering the situation.
• Often extended family role can be largely influenced by interests of reputation and social ramifications – even with the best of intentions to protect the family and children.
• Due to multiple family households, often the extended family can have an immediate stake in the outcome.
• Extended families’ opinions can often silence the couple’s voices as, what is ‘best for the whole family’ is often determined to be best for the individuals.
• Women deal with alienation ranging from snickering at temples and community events; not being invited to gatherings; being asked to leave families’ homes if “others are coming” for fear of ruining reputations by association.
• Children from a broken home are seen as bad influences on other children.

Power Dynamics:

• Due to the cultural dynamics, the man has more power throughout the divorce process.
• The woman may fear retaliation, shaming of her or her family in community.
• Due to ostracism, the woman may opt to move through the dispute as quickly as possible and give up large concessions in the haste, contrary to their legal interests and rights.
• Financial power being in the hands of the husband often acts as barrier.
• Immigration plays a strong role in a woman determining her best options, particularly if the husband sponsored her and if there are children involved.

Surrey Punjabi family lawyers Serf Grewal of MacLean Law

Many times South Asian couples choose what is known as “an invisible divorce” over a legal divorce believing that it is best for the children if they remain under the same roof regardless of the oppression and unhappiness that they must deal with. These are marriages where the couples are often very abusive and as well as violent.

Although many South Asian parents believe it is best for their children to reside with both parents rather than separating and having their children belong to two households; this is the misconception. Studies have shown that children who come from families where parents were fighting and arguing regularly, often grow up with extreme self-esteem and confidence issues. After children have been subjected to witnessing years of unhealthy parenting or violent relationships, the adverse effects such experiences often affect them as adults; they can often grow to have mental health issues, including problems with anger management, as well as significant trust issues in their adult relationships.

It is imperative that parents acknowledge that bringing up their children in an unhappy and unhealthy marriage will only serve as the antithesis of their children’s happiness. When placed in positive and nurturing environments, children can not only survive in two households after their parents separate, they can thrive.

For the reasons outlined above, many South Asians are often hesitant in utilizing the legal process to attain justice in family disputes; for this reason, it is important for legal practitioners to be aware and conscientious of the cultural issues and biases surrounding the South Asian community.

Talk to one of our South East Asian lawyers today in Surrey or Vancouver. Susan Justice has meditation training which provides for a composed and disciplined demeanour to achieve the very best results for families and their legal issues. Serf Grewal of our Surrey office has a broad legal background and a winning combination for families with complex business matters to manage when dealing with family law issues. Naseeb Kahlon understands the various cultural complexities that can further complicate family issues for her South Asian clients. Call our Surrey office today at 604 576 5400 or our Vancouver office toll free at 1 877 602 9900 or request a consultation.

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Top family lawyer, Lorne N. MacLean, Q.C., for Wealth Preservation and Asset Protection

Top Vancouver forensic audit lawyer Lorne MacLean, Q.C., just obtained another gratifying win for his family law client involving a Vancouver forensic audit to discover hidden family income and family assets. He leads the 20 lawyer Vancouver family property lawyer and Vancouver forensic audit lawyer team at MacLean Law which has 4 offices located across BC to assist our clients in Fort St John, Kelowna, Surrey and Vancouver, BC.

Forensic audits of family law property and income are extremely rare but they may be obtained if you hire an experienced Vancouver forensic audit lawyer like Lorne N. MacLean, Q.C. This exceedingly rare, yet aggressive, approach occurs when a top family lawyer like Lorne N. MacLean, QC is in charge of your family law file.

Lorne MacLean, Q.C. our founder and lead Vancouver forensic audit lawyer has a passion and talent for finding hidden income and assets to do justice in family law cases in BC. Lorne MacLean, Q.C. leads BC’s largest and most experienced high net worth and complex family valuation and family property division law department. Mr. MacLean’s recent success for our BC family law client shows that misleading the court about family income and family assets will not be tolerated. Hiring a top Vancouver forensic audit lawyer such as Lorne N MacLean QC can pay big dividends when one party refuses to play fair.

Lorne MacLean, Q.C. heads our wealthy Mandarin speaking and high net worth South Asian family lawyer team across BC. Lorne MacLean, Q.C. is highly skilled at ferreting out hidden income and assets and taking a cutting edge approach to fairly divide income and assets. Lorne MacLean, Q.C. has been one of only a very few lawyers to obtain a forensic accounting in a family income and property case and one of a handful of lawyers to obtain the exceedingly rare Anton Pillar Order in a family law context. His aggressive approach to finding improperly secreted income and property pays great dividends for his clients.

Our top Vancouver family lawyers know that non-disclosure of family assets is the cancer of matrimonial litigation, often causing a discouraged spouse to give up and walk away with less than what is fair. Our skilled BC family lawyers have expertise in helping our clients find assets and income that their ex-spouses are hiding overseas and locally, to ensure that our clients receive a fair division of property.

Lorne MacLean QC, and Spencer MacLean – top Vancouver forensic audit lawyer team members at MacLean Law

In the recent case of Fan v. Zhang, 2015 BCSC 2352, Lorne MacLean, Q.C., obtained orders for child support and spousal support on the behalf of the recipient wife. The wife had been “left in a significantly disadvantaged position by the separation agreement” that she signed when the parties separated.

The court found that the husband, the sole owner of a company operating a real estate business, had “failed to provide full and frank financial disclosure and further [has], likely deliberately, engaged in a practice of failing to report income and assets.” The court ordered a forensic audit of the husband’s worldwide income and financial assets. There husband was ordered to advance $50,000 for this purpose.

The court also imputed income on the husband for his lack of financial disclosure, pursuant to sections 18 and 19 of the Child Support Guidelines. The court struck portions of the husband’s counterclaim, including his claim for defamation as being “vexatious in the extreme”, and struck the husband’s claim for intentional infliction of mental suffering, which has “no place in family law proceedings”.

Our lawyers prepared a detailed analysis of the husband’s “glaring inconsistencies” in his financial disclosure, supporting the wife’s argument that the husband was not disclosing significant assets and income in both Canada and overseas in China. Our Vancouver Asian asset protection and wealth preservation department expertly analyzes and ferrets out incongruences and hidden assets in family law cases.

Lorne MacLean, Q.C.’s Key Take Away Points:

1. The court will not stand for financial non-disclosure, and has several means to penalize a party for non-disclosure, including imputing income and drawing an adverse inference about income and assets.
2. A separation agreement will not provide adequate protection for parties if it is unfair and there was insufficient financial disclosure. The court found, at paragraphs 17 to 19:

[17] The law is well established that a court is not bound by any agreement between the parties when it exercises a statutory power to award support and where the agreement is not in substantial compliance with the objectives of the Divorce Act, R.S.C.1985, c. 3 (2nd Supp.), Hyman v. Hyman, 1929 AC 601, a decision of the House of Lords, Miglin v. Miglin, 2003 SCC 24, L.M.P. v. L.S., 2011 SCC 64 at para. 41.

[18] I accept that the court should be slow to award interim support in the face of a separation agreement that provides for support payments to the contrary. If the separation agreement is set aside at trial, the court can award retroactive support, Hall v. Sabri, 2011 ONSC 5495.

[19] However, in this case, the evidence is overwhelming that the respondent Mr. Zhang has failed to disclose his true financial wherewithal. In the circumstances, I am satisfied that the terms of the separation agreement regarding the payment of child and spousal support each in the amount of $1,000 per month should be varied, at least on an interim basis…

3. When drafting family law proceedings, care must be taken to ensure that particulars are pled, and when pleading “non-family” related relief, parties must be very careful to ensure that claims are not vexatious or improper. Family law proceedings are often litigious and acrimonious, and there is no place for unnecessary and unfounded allegations that will only increase the hostility between the parties without resolving the family law issues.

Our top rated family law lawyers recognize the difficulties faced by spouses who have signed unfair separation agreements or who have ex-spouses with significant overseas and hidden assets. Our robust Vancouver forensic audit lawyer team will help you ensure no income or assets are left on the table.

Contact Lorne MacLean, Q.C. direct at 604 697 2800 or our Asian Wealth Preservation and Asset Protection group today. Our Mandarin and Cantonese-speaking family law lawyers and staff are ready to assist you. Call our Mandarin and Cantonese rapid response line at 604 682 6466 to speak to a top Vancouver forensic audit lawyer.

You can also contact the Vancouver or Surrey offices directly, request a consultation or call us toll free at 1 877 602 9900.

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Vancouver interim spousal support lawyer Lorne MacLean, QC heads our highly rated and experienced team of BC family lawyers. With 4 offices located across British Columbia, the Vancouver interim spousal support lawyers of MacLean Law focus on applying for and defending against Vancouver interim spousal support claims that focus on medium to ultra high net worth and income cases. Call our Vancouver interim spousal support lawyers now at 604-602-9000.

Lorne MacLean, QC and Spencer MacLean – Vancouver interim spousal support lawyers

Our Vancouver interim spousal support team deals with complex international income cases, discovering hidden income cases and ensuring tax free income is properly grossed up to ensure a fair award of  Vancouver interim spousal support. We regularly deal with Vancouver interim spousal support:

• involving separation or marriage agreements
• involving entitlement issues
• involving arguments over attribution of income to the payor a recipient cases
• involving the proper application of the custodial payor formula, split custody formula and shared custody formula under the SSAG
• involving re-partnering and remarriage issues
• involving high net worth assets and how it affects interim support
• involving incomes over $350,000
• involving grey divorce interim spousal support
• involving high net worth to ultra high net worth and international income cases

How Does Vancouver Interim Spousal Support Work?

In I.F. v. R.J.R. Madam Justice Ballance provided a tight summary of what Vancouver interim spousal support is and when and how Vancouver interim spousal support is to be awarded before trial:

[122]     The main purpose of an interim order for spousal support is to bridge the period between when the action is commenced and the trial at which time the court will be in a position to make a decision on the merits: D.R.M. v. R. B.M., 2006 BCSC 1921; Goriuk v Turton, 2011 BCSC 652.

[123]     Because interim orders are summary in nature and temporary, they provide a rough justice at best: Newson v. Newson, 65 B.C.L.R. (3rd) 22 (C.A.) at para. 11.  The “rough justice” approach underlying the temporary order implicitly recognizes that the evidence before the chambers judge on the interim application is often insufficient to permit an in-depth analysis of the wide array of factors relevant to entitlement and quantum of support: R.C.G. v. C.L.G., 2010 BCSC 1596, para. 11; Johnson v Johnson, [1993] B.C.J. No. 2140 at 16.

[124]     The legal test governing interim support is not necessarily the same as the test applicable in reaching the final order: Goriuk.  This is because the full picture of many of the considerations under the applicable legislation will not be known until a fulsome inquiry on the merits is embarked upon a trial.

[125]     Relying on Newson, Goriuk confirmed that where the marriage is admitted and need is proved interim support should be ordered without adjudicating the issues, unless the action is frivolous or vexatious.

[126]     While the other relevant factors that inform the issue of spousal support are to be considered to the extent possible, the respective needs and means of the parties are ordinarily the central factors, if not the most prominent, on an interim application.  The corollary is that considerations such as compensatory factors and the need to achieve self-sufficiency often hold less significance: R.C.J. v. C.L.G., 2010 BCSC 1596 at para. 11; Goriuk at para. 33.

[127]     In Goriuk, MacKenzie J. (as she then was) refers to the discussion of this principle by the Court of Appeal in Loesch v. Walji, 2008 BCCA 214 at paras. 19-20,where it cited Traber v. Traber, [1998] B.C.J. No. 2195, 82 A.C.W.S. (3d) 744 :

[5]        Mrs. Traber argues that an interim order should take the following three criteria into account:

(1) needs;

(2) ability to pay or means;

(3) presumptive claim to an equal standard of living subject to an equal sharing of the consequences of the dissolution of the marriage.

The final criteria stems from the decision of the Supreme Court of Canada in Moge v. Moge (1992), 43 R.F.L.  (3d) 345, and is a relevant factor on applications for interim spousal support: Carr v. Carr (1993), 46 R.F.L.  (3d) 326 (B.C.S.C.) and Myers v. Myers [1996] B.C.J. No. 6805, Cranbrook Registry (B.C.S.C.).  However, the extent to which the “equal standard of living” criteria, or any other factor found in s. 15(7) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) influences the amount of interim support will depend on the nature, extent and reliability of the evidence.  It must be remembered that interim applications are based on affidavit evidence that is often conflicting and incomplete.  Here, it is too early to fully address all the economic advantages or disadvantages arising from the marriage or its breakdown.  It is also too early to fully determine whether Mrs.  Traber is able to work full-time and achieve economic self-sufficiency.  Accordingly, in spite of all factors being relevant, the evidence as to means and needs is more complete at this stage than the evidence respecting other factors.  The difficulty this presents on an application for interim support was recognized in two authorities not referred to by counsel: Johnson v. Johnson, [1993] B.C.J. No. 2140, New Westminster Registry No. D031650 and Short v. Short (1996), 21 R.F.L.  (4th) 429 (B.C.S.C.).

Thus, the central factors that are usually to be considered on an interim application for either child or spousal support are the means or ability to pay support, and the needs of the spouse and children.

[Emphasis added]

[128]     In Martin v. Martin, 2013 BCCA 327, the Court of Appeal recently endorsed the wide interpretation given to the term “means” in s. 15.2 (4) of the Divorce Act, by Cory J. in Strang v. Strang, [1992] 2 S.C.R. 112, 39 R.F.L. (3rd) 233 at para. 15:

 … this interpretation of “means” is consistent with the historical interpretation of the term as including all pecuniary resources, capital assets, income from employment or earning capacity and other sources from which the person receives gains or benefits.

[129]     The concept of “needs” in this context is acknowledged to be a relative and flexible one.  It is not necessarily fully addressed when the applicant-spouse achieves a subsistence level or any level of income that surpasses subsistence: Myers v Myers, 1995 17 R.F.L. (4th) 298, 65 B.C.A.C. 226.

[130]     There is case authority to the effect that if the payor’s ability to pay warrants it, the interim order should permit the applicant to continue living at the same standard of living enjoyed before separation:  Robles v. Kuhn, 2009 BCSC 1163 (Master).  There is also authority for the proposition that imputing income, which necessitates an assessment of income, earning capacity and opportunities, is not suitable on an interim application, unless there are exceptional circumstances:  Nankivell v. Nankivell, 2002 BCSC 778; Campbell v. Campbell, 2008 BCSC 154.

[131]     The Spousal Support Advisory Guidelines (the “SSAG”) are acknowledged as being a useful tool in determining the quantum of interim support.  Absent exceptional circumstances that indicate otherwise, interim support should be ordered in the range suggested by the SSAG: Ladd v. Ladd, 2006 BCSC 1280; Beauregard v. Beauregard, 2014 BCSC 1188.

Don’t Delay In Getting Vancouver Interim Spousal Support  Legal Advice

Vancouver interim spousal support lawyer Lorne MacLean, QC can help you at an early stage but pre-planning and proper preparation is crucial for a sound and just result. Delay and procrastination is harmful to your family law case and most particularly your Vancouver interim spousal support case.

All to often people hope things will get better or simply do not want to rock the boat on the issue of Vancouver interim spousal support. Other times people play the martyr and take too little or worse still waive their crucial Vancouver interim spousal support rights. Conversely, some paying spouses who are hurt or guilty want to overpay Vancouver interim spousal support hoping this will lead to reconciliation. You need to pay or obtain a fair and sustainable amount of spousal support AFTER you know your Vancouver interim spousal support rights and obligations.

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Interim Support Marriage Agreements Disputes -Agreements Don’t Always Bar Interim Support in BC

When will someone obtain BC spousal support in an interim support marriage agreements dispute? This question is often asked by people who may have foolishly signed an unfair agreement or who now suffer financial hardship under an agreement that no longer operates fairly. A skilled lawyer can assess your situation and provide a sound strategy to enable you to determine your interim spousal support rights in a interim support marriage agreements dispute. In cases of substantial income and assets the stakes are huge and it pays to get top notch legal advice. Call Lorne MacLean, QC at 604-602-9000 to meet with him to develop a plan. Marriage Agreements can serve a valuable purpose if fairly negotiated a properly crafted. Home made or poorly negotiated agreements may be worthless.

Lorne MacLean, Q.C. Vancouver Interim Support Marriage Agreements lawyer

Most People Don’t Understand They Can Get Interim Support Despite A Support Waiver In a Marriage Agreement

British Columbia’s largest family law team at MacLean Law notes many people think an existing marriage agreement bars a successful application for interim spousal support. This is sad misconception and you should consult with our senior interim spousal support marriage agreements lawyers to get the straight goods on how interim spousal support works in your case if you are pursuing or defending an interim support and marriage agreements case. Unfair marriage agreements that were negotiated unfairly or although fairly negotiated no longer comply with the principles under our Divorce Act and Family law Act will not bar interim support from being awarded.

In a recent BC Supreme Court Family Law decision the court explained how interim support and marriage agreements interact in the BC family law system. Our interim support marriage agreements lawyers at MacLean Law have extracted the key principles and bolded the important factors you need to understand if you are involved in a contested interim support marriage agreements case:

[169]     I turn next to consider the impact, if any, of the impugned marriage agreement on an award of interim spousal support.

[170]     It is within the court’s discretion to make an interim order for spousal support despite the existence of a marriage agreement that purports to disentitle the applicant from support, provided the applicant is seeking to have the agreement set aside at trial: Thompson v. Thompson, [1987] B.C.J. No. 2339 (S.C.); Ziniuk v. Ziniuk (1986), 2 R.F.L. (3d) 398 (BCCA).  The twin factors that typically dominate the analysis, beyond the applicant’s financial need and the payor’s financial means and ability to pay, are the strength of the applicant’s case to set aside the agreement and his or her capacity to repay the amount awarded on an interim basis.

[171]     The respondent concedes that this Court has jurisdiction to make an interim support order in the face of the parties’ marriage agreement.  He asserts that the discretion should be exercised cautiously, with particular emphasis in this case on the claimant’s ability to repay in the event that her claim to set aside the marriage agreement fails at trial.  His position is that, with this in mind, the current level of support of $2,500 per month is appropriate and perfectly adequate to meet the claimant’s financial requirements on an interim basis.

[172]     Drawing on the authorities, and placing particular emphasis on the instructive analysis of the Saskatchewan Court of Appeal in Evashenko v. Evashenko, 2011 SKCA 22, it is my view that an applicant is not required to demonstrate a strong prima facie case or a likelihood or probability of success of impeaching the marriage agreement.  Those standards pose too high a bar to meet at the interim stage.  Rather, the test is whether the preliminary evidence is sufficient to raise a substantial question about the enforceability of the impugned agreement.  Stated another way but to the same evidentiary effect, the applicable threshold test is whether the evidence shows there is a reasonable prospect of success in impeaching the marriage agreement at trial.  

[173]     The evidence concerning the circumstances surrounding the execution of a marriage agreement and its contents, to the extent it has been developed on an interim application, is to be examined through the lens of Miglin v. Miglin, 2003 SCC 24 and Hartshorne v. Hartshorne, 2004 SCC 22.

(iv)        Analysis

[174]     My assessment of the evidence within the framework of the two steps of stage one of Miglin raises serious issues about the integrity of the parties’ marriage agreement.  The claimant has presented evidence about her vulnerability and the power imbalance in the circumstances of the negotiation and execution of the agreement that has not been discredited on this application.

[175]      I confess to having difficulty in accepting the claimant’s assertion that the fact that the marriage agreement was written in English, which is her second language, played a role in her lack of understanding of its far-reaching provisions.  That said, her evidence is nonetheless suggestive of having potentially received perfunctory legal advice when she signed it at an appointment that had been pre-arranged for her by the respondent in close proximity to the wedding day.  I find as an interim proposition that the claimant has shown a reasonable prospect of success of impeaching the marriage agreement on the first step of stage one of the Miglin analysis, due to circumstances that are suggestive of the exertion of pressure, power imbalance and other vulnerabilities that may have flawed its negotiation and execution.

FAIRLY negotiated agreements that remain fair and in compliance with statutory support objectives are entitled to respect.  BUT homemade or unfairly negotiated agreements that involve pressure, non disclosure of income and assets and that unfairly operate because material changes occurred that the parties had not anticipated  will be given less respect and are at risk to be modified or ignored.

The post Interim Support Marriage Agreements appeared first on MacLean Family Law.

MacLean Law’s family property interim distribution team is delighted with the new and more liberal rules to help level the family law litigation playing field. Why should a couple’s assets all be tied up before trial when each has a default equal entitlement to the gain on excluded property and all the equity of family property. Family Property Interim distribution is controlled by section 89 of our new Family Law Act. Our highly rated and highly experienced BC family property interim distribution team can explain these rules to you. Delay or procrastination never helps in a family law case. Don’t wait to understand your rights.

BC Supreme Court’s Madam Justice Ballance recently decided the new rule on family property interim distribution is more flexible than previous rules under the Family Relations Act and  she explains the purpose of the new family property interim distribution provisions:

Lorne MacLean, QC and Spencer MacLean – Vancouver family property interim distribution lawyers

[186]     I turn next to the claimant’s application under s. 89 of the FLA for the release to her of $100,000 out of the family property.

[187]     Section 89 reads as follows:

89  If satisfied that it would not be harmful to the interests of a spouse and is necessary for a purpose listed below, the Supreme Court may make an order for an interim distribution of family property that is at issue under this Part to provide money to fund

(a)  family dispute resolution,

(b)  all or part of a proceeding under this Act, or

(c)  the obtaining of information or evidence in support of family dispute resolution or an application to a court.

[188]     Less than a handful of cases have been decided under s. 89 and fewer still have discussed, in any detail, the factors that inform the court’s discretion in deciding to approve or refuse the requested interim distribution.

[189]     In L.L.J. v. E.J., 2013 BCSC 1233, the father failed to detail his anticipated expenditures for legal fees or tender satisfactory evidence as to why he was unable to meet those expenses from his other resources.  The father’s application was dismissed with leave to reapply if it was supported by satisfactory evidence.  In M.A.L. v. N.A.L., 2014 BCSC 203, the court approved the spouse’s application for an interim distribution of family property in the amount of $200,000 to fund her anticipated legal costs connected to an upcoming two-week trial.  In concluding that the request was reasonable, Melnick J. was influenced by the fact that the parties were moving toward trial in very unequal financial circumstances due, in large part, to the disparity in their incomes and access to assets.  The chief objective of the award was to level the playing field in the sense of the parties’ access to justice.

[190]     In none of the cases yet decided of which I have been made aware has the court confronted the thorny question of the impact of a marriage agreement that, if enforceable, would preclude the applicant spouse from the division of family property.

[191]     The provision itself does not bar the making of an interim order where there is an existing agreement concerning property division.  I can conceive of no principled basis to read such a limitation into s. 89 or to otherwise consider the existence of such an agreement as an absolute bar to relief.

[192]     The blunt purpose of s. 89 is to assist economically disadvantaged spouses to access justice in matrimonial disputes; it is meant to help level the litigation playing field that is so often skewed when one spouse controls all or the majority of the wealth and assets.  Application of s. 89 calls for a purposive interpretation, where the need of the applicant spouse to receive an interim distribution and the potential entailing harm to the other spouse are evaluated contextually with an eye on the larger objectives endorsed by the FLA.

[193]     In my opinion, the plain meaning of the phrase “harmful to the interests of the spouse” in s. 89 contemplates actual or potential economic harm, and is likely broad in its scope.  Determination of the presence of harm requires the court to reasonably anticipate and then assess the consequences that may flow from the interim order being sought.  That approach, in turn, invites a highly individualized component to the inquiry.  For example, would the distribution being sought in the particular case require a sale of property or of the encumbering of assets; what income tax ramifications might be triggered and what other transactional costs would arise?  The concept of harm under s. 89 would also encompass economic implications such as whether the distribution would adversely impact the other spouse’s lifestyle or effectively undermine or prejudice his or her argument for reapportionment.

[194]     In cases where the applicant may be precluded from entitlement to the family property based on a pre-existing agreement, the notion of being harmful to the other spouse’s interests could also take the form of the court permitting a distribution so as to enable the funding of an unmeritorious claim.  A reasonable way to attenuate that manifestation of harm is to require the applicant to show there is a reasonable prospect of success of impeaching the subject agreement.  The claimant in the case at hand has satisfied that hurdle.

[195]     There are a number of avenues available to the respondent to obtain funds in order to facilitate a distribution under s. 89.  By way of example, he could receive repayment of a portion of his shareholder’s loan to cover all or some of the required amount, he could borrow against the matrimonial property or the apartment on McRae Avenue, or sell the latter.

[196]     In terms of a harmful consequence to the respondent’s interests, the main concern is that the claimant would be unable to repay the amount distributed to her if the marriage agreement stands.  Evaluating the claimant’s ability to repay has caused me pause.  This is because if it is ultimately determined that the marriage agreement precludes her from spousal support as well as the division of assets, she may have to repay support as well as any distribution ordered.  The aggregate amount could be considerable and may take several years for the claimant to repay.

[197]     Adoption of a strict interpretation of “harmful” could mean that the applicant must be in a position to repay the distributed funds more or less immediately upon the failure of his or her claim to impeach the pre-existing agreement at trial.  Were the court to endorse that formulation, then it would follow that a distribution might only be sanctioned where the applicant has assets equal or greater to the amount of the distribution, or a corresponding borrowing power or an assured minimum entitlement to family property so the court could be confident of repayment.  Such an interpretation would place the most economically disadvantaged spouses beyond the reach of s. 89 and is not harmonious with a purposive approach.

[198]     In my view, the concept of being harmful to the financial interests of the spouse in terms of the recipients spouse’s capacity to repay, must mean harm of an enduring nature.  Accordingly, the fact that the recipient spouse may only be able to repay the distribution over a reasonable period of time into the future, as opposed to immediately following an unfavourable outcome at trial, would not, of itself, qualify as being harmful to the other spouse’s interests.

[199]     The factors I have weighed in considering the claimant’s ability to repay interim spousal support, including that there is a reasonable prospect of success of impeaching the marriage agreement at trial, apply equally in this assessment.  In all the circumstances, I am satisfied that a distribution to the claimant of family property in the amount of $50,000 is necessary to fund the matters referred to in s. 89(b) and (c).  I am satisfied that a $50,000 interim distribution from family property can be made without negatively impacting the respondent’s standard of living, compromising his asset base or triggering adverse income tax costs and without harming his financial interests in the overall picture.

[200]     In closing, I would observe that the claimant did not provide a budget of her anticipated legal expenses or a timeline within which she expected they would be incurred.  I would endorse the tendering of such evidence in support of an application under s. 89 as the preferable approach.  It does not follow, however, that the absence of such evidence will render the application fatal, as urged by the respondent.  Where, as here, it is abundantly clear that the litigation and business valuation issues are complex, expert opinion evidence is likely required and the history of the court proceedings already predicts a protracted and costly battle, the court may have sufficient information before it to approve a distribution.

Contact us today to learn how you can obtain a family property interim distribution. Call us toll free at 1-877-602-9900.

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Our BC retroactive spousal support lawyers want our clients to avoid the need to bring on a retroactive spousal support application.

Vancouver retroactive spousal support lawyers Lorne MacLean, QC, Tal Wolf and Spencer MacLean

Delay in increasing or reducing spousal support just adds aggravation to the already stressful spousal support dynamic. MacLean Law’s retroactive spousal support lawyers are part of BC’s largest family law team and we have 4 offices across BC in Vancouver, Kelowna, Fort St John/Dawson Creek and in Surrey. Call us across BC toll free at 1-877-602-9900.

Our retroactive spousal support lawyers encourage prompt correction of spousal support obligations. What are the rules the courts use to decide a retroactive spousal support case? Should they be the same or different than the principles applied in retroactive child support cases?

In J.D.C. v. K.L.M.F.C., 2014 BCSC 2182 the BC Supreme Court reviewed the leading Supreme Court of Canada case of Kerr and Barrow and noted that  retroactive child support and retroactive spousal support  claims share some but not all of the key principles from the famous Supreme Court of Canada case of DBS.

Here is what the court summarized the key principles to be in BC on retroactive spousal support claims:

[657]     In Kerr v. Baranow, 2011 SCC 10 (CanLII), the Court emphasized that when considering the factors that come into play when support is sought in relation to a period predating the court order, the exercise of judicial discretion requires flexibility and a holistic view of each case on its merits. As the Court observed in Kerr, the argument for retroactive spousal support would be less convincing where a spouse has already enjoyed the advantages he or she would have received from that support. As with retroactive child support other relevant considerations include the conduct of the payor, the reason for the delay in seeking support on the part of the recipient spouse, and any hardship on the payor spouse occasioned by the award.

[658]     In Kerr, the Court affirmed that the right to child support is the child’s and therefore it is the child, not the other parent that is prejudiced by the lack of diligence on the part of the parent seeking child support. This is to be contrasted with spousal support. There is no presumptive entitlement to spousal support and, unlike child sport; the spouse is not under any legal obligation to look out for a separated spouse’s legal interests. The Court stated that concerns about notice and delay generally carry more weight in relation to claims for spousal support than child support.

[659]     In Reis v. Bucholtz, 2010 BCCA 115 (CanLII), the Court of Appeal considered the principles and analysis in DBS with respect to retroactive child support are applicable to claims for retroactive spousal support (para. 66).

[660]     The factors to consider are:

1. Reasonable excuse for why support was not sought earlier;

2. Conduct of the payor;

3. Circumstances of the child; and,

4. Hardship occasioned by a retroactive award.

[661]     With these principles in mind, I have considered that the respondent claimed spousal support in her counterclaim and obtained an order for spousal support in 2010 at the JCC. I accept that the claimant has had notice of the respondent seeking spousal support since almost the commencement of this action.

[662]     In considering a retroactive spousal support claim, the claimant’s conduct during the interval between the JCC and the trial must be examined to determine if there was “blameworthy conduct” on his part. In DBS the Court directed that trial courts must take an expansive view of blameworthiness. It is “anything that privileges the payor parent’s own interests” (at para. 106). Blameworthy conduct includes hiding income increases, intimidating the recipient parent, or misleading the recipient into believing support obligations are being met (at para. 106).

Contact our retroactive spousal support lawyers if you have suffered a decrease in income and can’t pay the old amount or if you have reason to  believe your spouse has not properly disclosed an improvement in their income or finances that materially affects the proper amount of support that should be paid.

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Interim Support variation disputes can occur both before trial and a correction by way of an interim support variation can occur at the trial once all of the evidence has been properly put before the trial judge. Interim support orders are made on incomplete evidence and without benefit of seeing and hearing witnesses and observing them being cross examined under oath. The law is clear that a trial judge can make  an interim support variation at trial and they are not bound by the interim order.

Call us toll free at 1-877-602-9900 if you have questions about a interim support variation dispute.

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Interim support variation lawyers, Spencer MacLean and Lorne MacLean, QC

So, what are the rules to be applied in BC for an interim support variation that occurs at the trial of the action to ensure proper interim support was paid between the date of separation and the date of trial?

In a recent appeal court interim support variation appeal decision of Ford v Ford, 2015 SKCA 23,  the court reviewed the Canadian law on the point including a BC decision of Mr. Justice Perlman:

[24]   In my respectful view, the trial judge erred in law in concluding that he had to find a material change in circumstances to justify a variation of the amount set out in the interim order of April 26, 2010. Let me explain why.

[25]   Sections 15.1 and 15.2 of the Divorce Act, RSC 1985, c 3 (2d Supp) provide the Court with the authority to make an interim child support order and an interim spousal support order. An interim order is only effective until a final order is granted under those provisions of the Divorce Act. Such interim orders do not bind the trial judge when he or she is called upon to make a final order.

[26]   With respect to interim child support orders, Payne and Payne have commented on trial judges’ authority vis-à-vis existing interim child support orders. They state:

… Although section 17 of the Divorce Act relates only to applications to vary permanent orders and section 15.1 of the Divorce Act includes no express provision for the variation of interim orders, a court has inherent jurisdiction to vary an interim order. In ordering permanent child support, a trial judge is not bound by a pre-existing order for interim child support. An amount payable under an interim order may be adjusted retroactively by a trial judge, if an erroneous assumption was made concerning the obligor’s income.                                 [emphasis added]

See: Julien D. Payne & Marilyn A. Payne, Canadian Family Law, 5th ed (Toronto: Irwin Law, 2013) at 453-454.

[27]   In Gill v Gill, 2012 BCSC 1910 (CanLII) [Gill], the British Columbia Supreme Court did just that. Rather than varying a longstanding interim order for child support under s. 17, Pearlman J. exercised his authority to make a final child support order. After noting that the child support order that Mr. Gill sought to vary was only an interim order, Pearlman J. stated:

[51]      … At trial, the court exercises its jurisdiction to make a final order rather than to vary an interim order. Accordingly, in my view, this court’s jurisdiction to make an order respecting ongoing child support is governed by s. 15.1, rather than s. 17 of the Divorce Act. …

Whether or not there has been a material change of circumstances in the period since the interim order for child support had been made was therefore held not to be the appropriate test. Instead, Pearlman J. considered the application as if no prior order had been made.

[28]   The same line of reasoning was followed with respect to interim spousal support by the Newfoundland and Labrador Court of Appeal in Whelan v Whelan, 2005 NLCA 24 (CanLII), 246 Nfld & PEIR 317 and the New Brunswick Court of Appeal in Grant v Grant, 2012 NBCA 101 (CanLII), 397 NBR (2d) 254 [Grant]. In Grant, the New Brunswick Court of Appeal—deciding the question of whether an interim order for spousal support is binding upon the trial judge’s final determination on the same issue addressed by the interim order—concluded that “[c]learly, the answer must be answered in the negative.”

[29]   There is no justifiable basis for a trial judge’s authority to be restricted by an interim order for child or spousal support. As Zuber J.A. held in Sypher v Sypher (1986), 2 RFL (3d) 413 (Ont CA), “interim orders are intended to cover a short period of time between the making of the order and trial. I further observe that interim orders are more susceptible to error than orders made later; but the purpose of the interim order is simply to provide a reasonably acceptable solution to a difficult problem until trial.” Indeed, “a full investigation of the facts” may show that “a substantially different order” from the interim order is necessary. The purpose of interim orders, coupled with the fuller factual matrix in which a trial judge renders his or her decision, requires that the trial judge’s discretion to make a support order remain unfettered by a prior interim order.

[30]   In short, the trial judge is not bound by any existing interim child or spousal support order. He or she is instead required to conduct a fresh analysis without regard for whether there has been a “material change in circumstances.” A fresh s. 15.1 or 15.2 analysis—rather than a variation analysis under s. 17—is appropriate. This approach removes the burden on the support payor of proving a material change of circumstances since the date of the interim order. The trial judge relies on the evidence before him or her to make a final order. The final order must still be made in accordance with the Federal Child Support Guidelines and the law pertaining to spousal support.

[31]   With this approach in mind, the question that the trial judge should have answered is whether the arrears that accrued under the interim order for child and spousal support should have been adjusted retroactively. After a meticulous review of the evidence, the trial judge determined that Mr. Ford’s 2011 income for child support and spousal support purposes was $150,000 per annum and not $189,000 as set out in the April 26, 2010 interim order. In my respectful view, the trial judge erred in determining that a variation under s. 17 was required which seems to have prevented him from looking at this income from the standpoint of adjusting the payments retroactively. The interim order of April 26, 2010 provides no details of how Mr. Ford’s income was determined. As noted above, the Chambers judge in the judgment dismissing one of the applications to vary the interim order questioned the correctness of the $189,000 as being too high. These facts, combined with the explicit finding that Mr. Ford’s income in 2011 was $150,000 and not $189,000, lead one to conclude that a retroactive adjustment of child and spousal support back to January 1, 2011 was justified and I would so order.

Our Interim Support Variation lawyers are part of BC’s largest and one of the most experienced family law team. We have 4 offices across BC and act throughout the province and in Alberta by request. Call us toll free at 1-877-602-9900 if you have questions about a interim support variation dispute.

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Vancouver interim family appeals face a serious hurdle before being allowed to proceed. Our family rules discourage Vancouver interim family appeals and encourage prompt steps towards having a trial judge decide the family law, child parenting and financial issues. Leave is required for any Vancouver interim family appeals.

Lorne MacLean, QC Vancouver interim family appeals lawyer

The reason for this is that family matters that drag on only increase distress and costs to the parties. Our top rated family lawyers located in 4 offices across BC are ready to meet with you to help you resolve family disputes including disputes involving Vancouver interim family appeals.

In the recent BC Court of Appeal decision of Munro v. Munro the court reiterated the law that applies to Vancouver interim family appeals as follows:

[6]           Mr. Munro seeks leave to appeal the retroactive interim spousal support award, the interim spousal support award, and the determination that the other issues were unsuitable for summary trial disposition. I do not understand him to contest the dismissal of his claim for retroactive child expenses, the children not being the children of the marriage when the application was made.

[7]           The criteria for leave to appeal are well known. They include whether the point on appeal is of significance to the practice, whether the point raised is of significance to the action itself, whether the appeal is prima facie meritorious, whether the appeal may unduly hinder the progress of the action, and overall, whether it is in the interests of justice that leave be granted: Goldman Sachs and Co. v. Sessions, 2000 BCCA 326. In family law matters, in particular, this court has held that it is only “in the most extreme circumstances that leave to appeal will be granted in respect of interim orders”: Hyggen v. Hyggen, 1986 Carswell B.C. 506.

[8]           In considering the merits of an appeal, it is important to remember that the deferential standard of review applies to discretionary decisions.

[9]           I will deal with the application for leave in three pieces. First is the application for leave to appeal the decision to remit the matter for a trial rather than dealing with it on the summary basis as sought by Mr. Munro. In reaching his decision the judge said:

[2]        Except for three aspects arising from the applications, they are not, in my respectful opinion, suitable for summary determination. There are gaps in the evidence concerning incomes, disposition of family property and alleged family debts. There is also contradictory evidence central to the issues that require determination of credibility.

[3]        I do not accept Mr. Munro’s submission that proportionality dictates that these applications should be heard summarily. Proportionality does not supplant the need for judges to make determinations based on evidence. It does not supplant gaps in the evidence that prevent findings of fact necessary to determine the issues on a summary basis. Nor should proportionality be used to deny justice to the parties, which in my opinion would be the result in this case if I try to decide the issues based on speculation.

[10]        Whether to conduct a summary trial is a matter within the discretion of the judge before whom the application is brought. In my view, it is highly unlikely that a division of this court would say that this judge was wrong in declining to consider the undetermined issues on a summary basis given those comments I have just referred to – that he should have had a summary trial even though he considered the evidence was not ripe for it and that there were issues of credibility not suited to summary trial.

[11]        In other words, I consider the proposed appeal of the refusal to decide certain issues by a summary trial lacks the merit necessary for leave to appeal. Having said that, however, I would observe that it remains open to Mr. Munro to apply to the judge for leave to bring another application under Rule 11-3 of the Supreme Court Family Rules for something short of the full trial now contemplated.

[12]        What then of the monetary decisions of the judge? In respect to the retroactive aspect of the award, it is said on behalf of Mr. Munro that the judge failed to consider factors normally reviewed in determining whether retroactive spousal support should be awarded. In particular, he complains that the judge did not consider the prospect of hardship on his part, and he refers to Ms. Munro’s delay in bringing her application.

[13]        While the judge did not advert to hardship in his reasons awarding the retroactive sum, he did deal with the question of hardship in his decision on the application for a stay of the support order pending the leave application. There he observed that payment of the retroactive spousal support was ordered from the funds held in trust and concluded there was, thus, no immediate hardship to Mr. Munro as a result of the order. As to possible overpayment, there remains available some of the proceeds from sale, and Ms. Munro’s entitlement to a share of Mr. Munro’s pension as sources of funds to settle off any such possible overpayment.

[14]        I do not consider that this issue of retroactive spousal support is one that this court is likely to interfere with: the order made was interim, there is no immediate hardship to Mr. Munro as the sum is covered by monies held in trust that have not been to the use of either party these many years, and Mr. Munro will not be without a source of repayment in the event Ms. Munro is found not to be entitled to all of a portion of the retroactive support ordered on this interim basis.

[15]        I have reached the same conclusion in respect to the award for ongoing spousal support. Although Mr. Munro complains that the judge has found entitlement to spousal support, that finding is interim only based on the incomplete record before the judge, and as such is subject to the more complete process yet to come and the final determination that will be made. It may be that a trial judge, reviewing the entire matter, including perhaps the issue of the long standing status quo in respect to both child and spousal support, and including the efforts made by Ms. Munro to become economically self-sufficient, will find Ms. Munro is not entitled to ongoing support in the amount ordered. If that be so, appropriate adjustments can be made as part of the final order in the case.

[16]        In other words, considering this court’s approach to interim orders in family litigation, I do not view either of the financial orders as having the requisite degree of merit for the granting of leave to appeal.

[17]        Mr. Munro has referred to the need for proportionality and efficiency in the court process. While it is true that efficiency and proportionality inform the application of the summary trial process, these values do not trump the need for either sufficient evidence from which to find the facts, or an adequate process to determine credibility.

[18]        On the other hand, those same values of efficiency and proportionality are relevant to the interests of justice. In my view they weigh against an appeal in this court, given my view of the merits of the proposed appeal and the need for the parties to still engage in the Supreme Court of British Columbia to obtain a final order.

[19]        In my view, the interests of justice do no favour leave to appeal. The application is dismissed.

Our Vancouver interim family appeals lawyers are ready to assist you whether you want to proceed or defend against a Vancouver interim family appeals case. We will explain how the trial judge can correct interim orders made on incomplete evidence. Call us at 1-877-602-9900. We have 4 offices across Bc in Vancouver, South Surrey, Fort St John and Kelowna.

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MacLean Law is BC’s largest and one of the most experienced group of Surrey excluded property lawyers. Our South Surrey excluded property lawyers are guided by Lorne MacLean, QC and senior Surrey family lawyer Laurence Scott who manages senior associate family law associate Serf Grewal and associate Susan Justice who are South Asian family lawyers that are fluent in Punjabi, Hindi and Urdu.

Surrey Excluded Family Lawyers, Susan Justice

Our top rated Surrey excluded property lawyers note that there is now a solid trend to excluding property brought into a relationship or received by one spouse alone as a gift or an inheritance. The score for cases in favour of not sharing the starting value of excluded property is at least 8:2 now and our Surrey excluded property lawyers await the first BC Court of Appeal decision expected in the next few months. What is the test our for proving the starting value is not shared? What happens if new property replaces older excluded property? The recent case of Shih explains what you must prove to win the exclusion on Surrey excluded property. Our Surrey excluded property lawyers have extracted and underlined the key parts for you:

[59]        I agree with that analysis and conclude that a transfer of excluded property from one spouse into the name of the other spouse or into the spouses’ joint names does not extinguish the right of the transferor to claim the exclusion.

 

[60]        Section 85(2) casts the burden of proof on the spouse seeking to exclude property.  The parties disagree with respect to the nature of the evidence required, although they both rely on Asselin v. Roy, 2013 BCSC 1681, as supportive of their position.

 

[61]        Ms. Shih says Asselin establishes that documentary evidence is required to prove a claim to excluded property.  Mr. Shih submits that conclusive documentary evidence is not essential and that even if a party does not have documentary evidence to establish a direct link from an excluded asset into an existing asset, an exclusion will be established provided there is a sufficient evidentiary basis for the court to conclude, on a balance of probabilities, that there is such a link.  He emphasizes that in Asselin, Mr. Justice Harvey found that the husband had established some excluded property on the basis of an informed estimate notwithstanding the absence of specific documentary proof of its value.

[62]        As noted in Asselin and subsequent cases that have considered this issue such as Cizmic v. Cizmic, 2015 BCSC 1430, and V.J.F., the FLA reflects a more formulaic and less discretionary approach to both the identification and division of family property than existed under the former Family Relations Act.  As stated by Mr. Justice Harvey in Asselin at para. 106 “more mathematical certainty from a clear evidentiary record is required.”  Thus, generally speaking, a party asserting a claim to excluded property is expected to produce documents showing the value of the property at the critical times and, where relevant to the claim, documents showing the movement of the property as it changes character from one asset into another.

 

[63]        Notwithstanding that general expectation, I do not read Asselin as holding that documentary evidence is invariably required.  In Asselin, the respondent established a claim to certain excluded property on the basis that it was derived from property he owned before the relationship began, notwithstanding the absence of documentary evidence establishing the value of the property at that time.  He also established a claim to other excluded property on the basis that it was derived from property he inherited, notwithstanding the absence of documentary evidence establishing the value of the inheritance or the purpose to which it was first applied.  This is because Mr. Justice Harvey was satisfied that the evidence tendered was sufficient to permit him to make informed findings:  Asselin at paras. 194-203.

[64]        The principle that emerges from the case law is that a broad brush or rough estimate approach to identifying excluded property is not appropriate and that a party claiming excluded property must establish, on a balance of probabilities, the basis for and extent of the exclusion with precision.  Where it is asserted that excluded property has changed character, each link in the chain required to trace the property into a currently owned asset must also be established.  Depending on the nature of the claim in question, this may mean, in practical terms, that it is impossible for a party to meet the onus without documentary evidence.  For example, where the claim in question is a bank account that one party says pre-existed the relationship the court may conclude that a party’s viva voce testimony of the balance in the account at a particular point in time several years earlier is unreliable, and therefore insufficient to meet the onus, if not corroborated by a bank statement.  On the other hand, where the claim in question is founded upon an unusually memorable event, such as inheritance, the court may conclude that a party’s viva voce testimony as to the value of the inheritance is reliable without corroborating documents.  In other words, in determining whether the onus has been met, the court will assess the credibility and reliability of the whole of the evidence tendered in the context of the specific case, but having regard for the precision mandated by the more formulaic approach of the FLA.

If you have a family property or excluded property issue call our Surrey family law team at 604-576-5400 or meet with any of BC’s largest family law team in Vancouver, Kelowna, Fort St John and Surrey by calling 1-877-602-9900 toll free across BC.

Surrey Punjabi family lawyers, Serf Grewal of MacLean Law

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Lorne MacLean, QC was the one of  first BC parentage lawyers in Canada to deal with a Canadian frozen embryo dispute. He was successful as Juanita Nott’s BC parentage lawyers representative in protecting frozen embryos from being destroyed pending trial. Our BC parentage lawyers deal with cutting edge assisted human reproduction disputes as well as complex high net worth family cases. As the founder of our BC parentage lawyers team, Mr MacLean regularly handles the most difficult and high profile cases in the Supreme Court, the Court of Appeal and the Supreme Court of Canada. If you have a “I’m all in” case you deserve the opportunity to meet with us to get the best representation you can. We handle Assisted Human Reproduction disputes, paternity test disputes, parentage declaration and guardianship appointment and removal disputes. Call us toll free across BC at 1-877-602-9900 we act all across Bc and into Alberta and other provinces on select cases.

Lorne MacLean, QC founder of MacLean Law BC Parentage Lawyers

What does a declaration of parentage mean? While we query whether a person who is a parent has all the rights set out in the most recent case if they are not found to also be a guardian, the recent BC Supreme Court case sets out some basic principles if their is no guardianship dispute under the Family Law Act:

[41]         The court’s jurisdiction to grant declarations of parentage was also acknowledged in B.A.N. v. J.H., 2008 BCSC 808, following Rypkema. The facts in B.A.N. were substantially the same as found here. The male of a heterosexual couple contributed sperm to create an embryo from donated eggs that was then carried to term by a surrogate, pursuant to an agreement.

[42]         While Part 3 is intended to be comprehensive, the FLA contemplates that these provisions may not capture every potential scenario situation in this ever-evolving world of human reproduction. In that respect, s. 31 of the FLA confirms the court’s continuing (but now statutory) jurisdiction to make declarations of parentage:

31(1)    Subject to subsection (5), if there is a dispute or any uncertainty as to whether a person is or is not a parent under this Part, either of the following, on application, may make an order declaring whether a person is a child’s parent:

(a)        the Supreme Court;

(b)        if such an order is necessary to determine another family law dispute over which the Provincial Court has jurisdiction, the Provincial Court.

…

(3)  To the extent possible, an order under this section must give effect to the rules respecting the determination of parentage set out under this Part.

…

[43]         However, the court must find that there is either a “dispute” or “uncertainty” regarding a person’s parentage before exercising this statutory jurisdiction. I am not aware of any prior court decisions that have applied this provision.

[44]         In this case, I accept that there is some uncertainty in relation to D.D. and M.L.’s parentage of É, arising from Quebec law, and the requirement of a court order to have D.D. and M.L.’s parentage recognized in that province. It appears that if the petitioners were residing in British Columbia, no such declaration would be necessary.

[45]         D.D. and M.L. have also referred to the benefits of declarations of parentage, as accepted by the Court in A.A. v. B.B., 2007 ONCA 2, at para. 14, which I would adopt and summarize as follows:

• it is a life-long immutable declaration of status;

• it allows the parent to fully participate in the child’s life;

•       it determines lineage;

• it will determine other kindred relationships;

• the declared parent may obtain important personal and identifying documentation for the child, such as a social insurance number, a health card, airline tickets and passports;

• it may determine Canadian citizenship;

• it will establish a parent’s right to register the child in school;

• the declared parent has to consent to any future adoption;

• it will allow that parent to assert rights as such under applicable legislation; and

• it will allow that child to assert rights as such under applicable legislation, including perhaps those arising upon an intestacy.

[46]         These benefits clearly go beyond those obtained by the issuance of a British Columbia birth certificate. Importantly, these benefits are enjoyed not only by the intended parents, but also extend to the child. It is trite to state that the legislative intent under the FLA, and the intent of this Court when applying its provisions, is ensuring that a child’s best interests are paramount.

[47]         In my view, it is, therefore, appropriate to grant the declaration of parentage so as to allow D.D. and M.L., and importantly É, these significant benefits. This declaration will allow D.D., M.L. and É to function more fully as a legal family unit in their home province of Quebec.

[48]         The remaining question relates to the declaration sought as to non-parentage of E.M. Section 29 of the FLA does not expressly address her status. In my view, s. 31 provides the jurisdictional basis upon which to make such a declaration.

[49]         I would respectfully adopt the comments of the Court in M.D. v. L.L. (2008), 90 O.R. (3d) 127, at paras. 48-68 (S.C.J.). Justice Nelson noted that there are sound reasons for the granting of such a declaration in terms of clarifying who is, and who is not, a parent:

[55]      A declaration of parentage pursuant to s. 4 of the CLRA [Children’s Law Reform Act, R.S.O. 1990, c. C.12] is a judgment in rem, recognized for all purposes by the world: Sayer v. Rollin, [1980] O.J. No. 613, 16 R.F.L. (2d) 289 (C.A.), at para. 5. What additional benefit is there in a declaration of non-parentage when combined with a s. 4 declaration? The declaration of non-parentage is, it seems to me, simply a clarification of status for the genetic parents, the surrogate mother and her spouse, vis-à-vis their respective relationships towards the child. Where there are two persons with potential claims to be the child’s mother, a declaration that one of them is the child’s mother might not preclude the other from also being that child’s mother. Thus, a declaration of non-maternity would clarify the status of the interested parties in a manner that is worthy of judicial determination

[67]      It is in the best interests of the child that this court issue a declaration that the child’s surrogate mother, who is without genetic link to the child, is not that child’s mother. As noted above, at para. 37, the Ontario Court of Appeal has discussed the benefits and importance of a declaration of parenthood. In my opinion, there is no doubt that it is additionally in the best interests of the child to remove any ambiguity about who the child’s mother is, where the circumstances of the child’s birth and the operation of a statute combine to produce such ambiguity.

See also A.W.M. v. T.N.S., 2014 ONSC 5420, at paras. 33-35.

Our BC parentage lawyers are ready to assist in any frozen embryo dispute, paternity dispute or BC parentage lawyers dispute. Contact us early on in the dispute to prevent problems.

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The Fort St John family property lawyers and Dawson Creek property division lawyers are often asked how Fort St John family property can be divided in cases where our clients have concerns that an equal division of family property is unfair. MacLean Law is BC’s largest family law firm and we have offices in Fort St John and Dawson Creek, Kelowna, Surrey and downtown Vancouver. Our new Family Law Act has established a new and stronger presumption in favour of equal division of Fort St John family property. However there are cases where the court will unequally divide family property.  Market appreciation, post separation efforts,  short relationships have all led to unequal division.

If you have questions about Fort St John family property and how it is divided call us at  250-262-5052.

Fort St John family property lawyers, Lorne MacLean, Qc, Spencer MacLean and Tal Wolf

In the 2015 decision of M.T. v. C.J.B. 2015 BCSC 1852 the court summarized the new and more stringent test to unequally divide property:

[113]     Under s. 95(1) of the FLA, the court has discretion to order an unequal division of family property or debt, or both, if it would be “significantly unfair” to equally divide family property or debt.  Section 95(2) sets out the factors for the court’s consideration in determining whether or not an equal division would be significantly unfair:

 

Unequal division by order 

(2)        For the purposes of subsection (1), the Supreme Court may consider one or more of the following:

(a)        the duration of the relationship between the spouses;

(b)        the terms of any agreement between the spouses, other than an agreement described in section 93 (1) [setting aside agreements respecting property division];

(c)        a spouse’s contribution to the career or career potential of the other spouse;

(d)        whether family debt was incurred in the normal course of the relationship between the spouses;

(e)        if the amount of family debt exceeds the value of family property, the ability of each spouse to pay a share of the family debt;

(f)         whether a spouse, after the date of separation, caused a significant decrease or increase in the value of family property or family debt beyond market trends;

(g)        the fact that a spouse, other than a spouse acting in good faith,

(i)         substantially reduced the value of family property, or

(ii)        disposed of, transferred or converted property that is or would have been family property, or exchanged property that is or would have been family property into another form, causing the other spouse’s interest in the property or family property to be defeated or adversely affected;

(h)        a tax liability that may be incurred by a spouse as a result of a transfer or sale of property or as a result of an order;

(i)         any other factor, other than the consideration referred to in subsection (3), that may lead to significant unfairness.

[114]     In Jaszczewska v. Kostanski, Madam Justice Baker concisely summarized the law on the meaning of “significantly unfair”:

[166]    In L.G. v. R.G., 2013 BCSC 983, as para. 71, Justice N. Brown stated:

In my view, the term “significantly unfair” in s. 95(1) of the FL essentially is a caution against a departure from the default of equal division in an attempt to achieve “perfect fairness”.  Only when an equal division brings consequences sufficiently weighty to render an equal division unjust or unreasonable should a judge depart from the default equal division.

[167]    Similar statements were made in Remmem v. Remmem.  In that case, at para. 44, Justice Butler noted:

…The Concise Oxford English Dictionary defines “significant” as “extensive or something weighty, meaningful, or compelling.”  In other words, the Legislature has raised the bar for a finding of unfairness to justify an unequal distribution.  It is necessary to find that the unfairness is compelling or meaningful having regard to the factors set out in s. 95(2).

[168]    In Slavenova v. Ranguelov, 2015 BCSC 79, at para. 60, the court said:

The “significant unfairness” contemplated by s. 95 requires much more than differing financial contributions in a relationship.  Exactly equal contribution is more likely exceptional than commonplace.  The new regime under the FLA recognizes that partners will come to a relationship in differing circumstances and accounts for those in the concepts of “family property” and “excluded property”.  The starting point in the division of property analysis already applies significant exclusions.

[115]     Thus unfairness that attains the level “significant unfairness” warranting an unequal division of family property or debt under s. 95 must be compelling or meaningful, on a consideration of the factors set out s. 95(2).  Unequal division will be justified where the court finds that the consequences of equal division would be so weighty as to produce an unjust or unreasonable result.

MacLean Law’s family lawyers are focused on helping you move successfully through relationship breakdown to post separation personal success.

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Fort St John High Net Worth Divorce

MacLean Law has again expanded their Fort St John high net worth divorce and Dawson Creek family property and substantial oil and gas patch wealth preservation team that is focused on protecting business owners who work so hard to accumulate wealth in the North Peace BC. Call Candice our all star intake manager at 250-262-5052.

Fort St John High net worth divorce lawyer, Lorne MacLean, QC

When the hard working entrepreneurs of the North Peace, Fort St John and Dawson Creek need someone to handle their Fort St John high net worth divorce and Fort St John complex family law and Dawson Creek excluded property case they turn to Lorne MacLean, QC and his team of top rated high net worth family lawyers who operate out of MacLean Law’s Fort St John family law office as well as their offices on the waterfront in Vancouver, Kelowna and South Surrey. Lorne MacLean, QC personally handles the most difficult Fort St John high net worth divorce and Dawson Creek high conflict child custody cases.

Lorne MacLean, QC is one of Canada’s most highly rated family and divorce law lawyers and he routinely handles Fort St John high net worth divorce cases. His firm, MacLean Law, is British Columbia’s largest family law firm. For over a decade he has had a resident office in Fort St John, BC and helped Dawson Creek and Fort St John high net worth business owners defend against support and property division claims and assisted his clients in obtaining shared child custody at a time when such shared parenting was unheard of.

His tenacious Fort St John high net worth divorce team handles dozens of Fort St John high net worth divorce cases each year. MacLean is proud to have built and owned a state of the art law office in Fort St John, BC and has a proven commitment to the people of Fort St John and Dawson Creek who create the money that drives this great province.

Since founding the firm in 1983, MacLean Law has established a reputation for handling the most complex and contentious marriage breakdowns with the utmost discretion. We understand the sensitive nature of difficult Fort St John high net worth divorce and family law matters caused by separation in British Columbia. Your privacy, public profile, lifestyle and professional standing will be protected. Our goal through the Fort St John high net worth divorce and separation process is to minimize disruption and  to allow parties to move forward to successful post separation lives ensuring fair and equitable distribution of family property and excluded property allocations.

Fort St John High Net Divorce Clients Worked Hard For Their Money

Lorne MacLean, QC invested in the North Peace when he bought and built his state of the art BC family law office in downtown Fort St John, BC but people are the key to serving our Fort St John high net worth divorce clients. We staff the office full time and Candice of our office there is loved by our clients for her brains, cheerful demeanour and her compassion. Our highly rated high net worth North Peace family law team will focus on your needs and explain how high net asset and high net income cases work. We will also advance strong arguments concerning how much risk you face and how the current declining LNG economy in the North Peace and Fort St John Dawson Creek region can mean support and property valuations have declined dramatically. We help our Fort St John high net worth family law clients and our Dawson Creek gas patch contractors achieve fair results and correct support payments downward  to reflect the downturn in the North Peace area.

When Fort St John and Dawson Creek spouses have complex personal and commercial financial portfolios including North Peace property, oil and gas patch business interests, stock options, retirement accounts, pensions, executive bonus packages, books of business, and active and passive asset depreciation issues, it’s vital to ensure an accurate valuation of Dawson Creek and Fort St John excluded property,  family property and family debts both at the start and end of the relationship.

In addition to preparing marriage agreements, divorce/separation and property division, for our Fort St John and Dawson Creek business owners, contractors and entrepreneurs our services include finding the right jointly-appointed financial experts for your Dawson creek business and Fort St John family business which may include real estate appraisers, business valuators, art appraisers and forensic accountants.

High Net Worth Fort St John and Dawson Creek Gas Patch High Net Worth Key Considerations Can Include:

• Thorough opening and closing inventory and valuation of Fort St John and Dawson Creek family assets and family property;
• Fort St John and Dawson Creek excluded property calculations and tracing of North Peace excluded property and family assets;
• Fort St John and Dawson Creek volatile economy and LNG setback issues that result in income decline and the need to reduce support promptly to avoid court denying relief months or years later
• Dawson Creek and Fort St John estate freezes, family trusts, corporate rollovers, butterfly transactions, impact on valuation of different share classes;
• Income taxes, capital gains taxes, RRSP’s and corporate tax implications related to valuation and division;
• Valuation of business entities, professional practices, partnerships, or other interests;
• Fort St John and Dawson Creek business owner and contractor retirement as it affects the payment of spousal and child support
• North Peace valuation of pensions and retirement or executive compensation packages;
• Fort St John and Dawson Creek analysis of trust funds and beneficial interests and valuations;
• Fort St John division of family debts;
• The impact of Fort St John and Dawson Creek remarriage on spousal support;
• The need for consideration of inheritance planning for children on remarriage;
• Dawson Creek and Fort St John exceptions to child and spousal support for high income earners;
• Fort St John and Dawson Creek self-sufficiency objectives for partners leaving long marriages or relationships;
• How Dawson Creek and Fort St John excluded property including pre-relationship property, gift and inheritances are affected by joint registration or ownership of same;
• Fort St John and Dawson creek premarital and cohabitation agreement drafting and negotiation.
• Negotiation, mediation and arbitration of Fort St John and Dawson Creek separation agreements

 Contact Lorne MacLean, QC if you have an “I’m all in” Fort St John high net worth divorce family law case. Candice awaits your call at 250-262-5052.

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Our senior Surrey family lawyers are constantly updating our clients on new developments in Surrey family property division. There are two types of property under our new property division regime “family property” that is normally shared equally and “excluded property which normally has only the gain made on it during the relationship shared equally. You can meet with our top rated Surrey family lawyers at our South Surrey office at the corner of Highway 10 and 152nd. Call us at 604-576-5400. Our Surrey family lawyers are fluent in Punjabi, Cantonese, Hindi, Mandarin as well as English.

Surrey Family Lawyers, Spencer MacLean and Lorne MacLean, QC

Our Surrey family lawyers are aware that under certain circumstances even excluded property might be shared. Our Surrey family lawyers explain to our clients that the new test to divide “excluded property” is rigorous but not impossible to meet. A recent BC Supreme Court case summarized the law on how a person might obtain a share of excluded property and refers to the test set out in the new Family Law Act for division of excluded property:

[63]         Under s. 96(b), the court must not order the division of excluded property unless it would be significantly unfair not to do so in consideration of the duration of the relationship and the spouse’s direct contribution to the property.

[64]         In V.J.F. v. S.K.W., 2015 BCSC 593 at para. 79, Mr. Justice Walker found the comments of the court on s. 95 of the Family Law Act in Remmem v. Remmem, 2014 BCSC 1552, instructive for the approach to be taken for s. 96. In Remmem at para. 44, Mr. Justice Butler provided;

[44]      … Significantly is understood to mean more than a regular impact — something weighty, meaningful, or compelling. In other words, the legislature has raised the bar for a finding of unfairness to justify an unequal distribution. It is necessary to find that the unfairness is compelling or meaningful[.] … 

[65]         In V.F.J., Walker J. went on to find:

[83]      The FLA has not set the bar so high that finding significant unfairness is next to impossible. For example, in Cabezas v. Maxim, 2014 BCSC 767, the Court found that significant unfairness would result from the unequal division of the claimant’s purported excluded property given the respondent’s contributions to the maintenance of the property, her decision to undertake liability on the mortgage, her greater contribution towards expenses, and the length of their cohabitation of 6.5 years[.] …

Ultimately the court applied this test for “significant unfairness” to the wife’s claim and denied her claim to divide excluded property as follows:

[66]         There was no evidence of Ms. Szablewska contributing directly to the preservation, maintenance, improvement, operation, or management of this property. This relationship was not lengthy. Having regard to the definition of “significantly unfair” as well as the factors under s. 96(b)(i) and (ii), Ms. Szablewska has not demonstrated that it would be significantly unfair for Mr. Staehli to retain Cedar Grove Estates as an excluded asset not subject to division. Further, any Cloudworks’ funds contributed to Cedar Grove Estates did not increase the value of the property during the course of the parties’ relationship.

Click here to book a consultation with one of our senior Surrey family lawyers today. Delay only weakens your case and keeps you in the dark on your Surrey family law rights.

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MacLean Law’s top rated BC separation agreement lawyers know that many separating couples want to resolve their family law dispute promptly with a properly drafted and fair BC separation agreement. No one wants an expensive trial when they can have one of our skilled senior BC separation agreement lawyers negotiate or mediate a comprehensive BC separation agreement.

Lorne MacLean, QC and Spencer MacLean – BC separation agreement lawyers

The new Family Law Act promotes fair BC separation agreements that ideally are crafted by experienced and savvy BC separation agreement lawyers. The BC separation agreement lawyers at MacLean Law know that:

• involving lawyers early on in the process for both spouses; and
• obtaining full and frank disclosure from each spouse;
• are  key factors in ensuring our clients do not sign an unfair BC separation agreement either because of an informational vacuum or fear of family violence.

All too often we have to steer our clients clear from the disasters of being a martyr in taking too little or being a hero in overpaying to get a case settled. Those unfortunate people we haven’t counselled to a just result on separation and who make these mistakes will spend thousands of dollars trying to fix a mess they created by rushing to sign an unfair BC separation agreement. Come to our BC separation agreement lawyers early on so your outcome is positive and you have the funds to move on to a successful post separation life.

New Act Promotes Out Of Court Settlements Which Is Great

The new BC Family Law Act focuses on negotiation, mediation and arbitration of disputes with court being the final alternative. Section 4 of the Family Law Act emphasizes that out-of-court dispute resolution processes and resolution through agreements are not simply add-ons to litigation but are the preferred option, with court as a valued, but last, resort. Section 5 requires full and truthful disclosure early in the process to promote early settlement by ensuring that the parties have all the information required for fair and sound decision-making. Information gaps can fuel or prolong conflict and can affect the fairness of agreements. Our BC separation agreement lawyers always carefully explain top our clients the key sections of the new BC Family Law Act concerning separation agreements. Fair agreements will be upheld but significantly unfair agreements where someone is misled, bullied or cannot protect themselves cannot expect to be approved of an upheld by our courts.

Agreements respecting property division

92  Despite any provision of this Part but subject to section 93 [setting aside agreements respecting property division], spouses may make agreements respecting the division of property and debt, including agreements to do one or more of the following:

(a) divide family property or family debt, or both, and do so equally or unequally;

(b) include as family property or family debt items of property or debt that would not otherwise be included;

(c) exclude as family property or family debt items of property or debt that would otherwise be included;

(d) value family property or family debt differently than it would be valued under section 87 [valuing family property and family debt].

New Stricter Test To Set Aside BC Separation Agreements 

Our new Act sets a stricter standard for setting aside BC separation agreements as section 93 sets out:

Setting aside agreements respecting property division For Unfair Negotiations

93  (1) This section applies if spouses have a written agreement respecting division of property and debt, with the signature of each spouse witnessed by at least one other person.

(2) For the purposes of subsection (1), the same person may witness each signature.

(3) On application by a spouse, the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement described in subsection (1) only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement: 

(a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement;

(b) a spouse took improper advantage of the other spouse’s vulnerability, including the other spouse’s ignorance, need or distress;

(c) a spouse did not understand the nature or consequences of the agreement;

(d) other circumstances that would, under the common law, cause all or part of a contract to be voidable.

(4) The Supreme Court may decline to act under subsection (3) if, on consideration of all of the evidence, the Supreme Court would not replace the agreement with an order that is substantially different from the terms set out in the agreement.

Courts Can Set Aside Fairly Negotiated Agreements That Later Become Significantly Unfair

(5) Despite subsection (3), the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement if satisfied that none of the circumstances described in that subsection existed when the parties entered into the agreement but that the agreement is significantly unfair on consideration of the following:

 

(a) the length of time that has passed since the agreement was made;

 

(b) the intention of the spouses, in making the agreement, to achieve certainty;

 

(c) the degree to which the spouses relied on the terms of the agreement.

 

(6) Despite subsection (1), the Supreme Court may apply this section to an unwitnessed written agreement if the court is satisfied it would be appropriate to do so in all of the circumstances.

Contact our seasoned and savvy BC separation agreement lawyers across BC by clicking here.

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卑诗省分离协议书及财产划分的相关法律

麦克连律师事务所的资深卑诗分离协议律师们深知，许多准备要分离的夫妻都想利用一份专业、正规的卑诗分离协议书来调节他们的家庭纠纷。卑诗省新施行的《家庭法法令》（Family Law Act）更提倡用正规而公平的卑诗分离协议书。BC省对分离协议书有经验的律师——特别是在麦克连律师事务所的律师团队——都知道：离婚双方都应该尽可能在最早的阶段就请律师，并对掌握对方的全部财产信息，因为这样可以防止一方因为惧怕家庭暴力或是对方刻意隐瞒而签下不公平的分离协议书。我们经常告诫我们的客户不要在这种情况下牺牲自己的利益，一面挑起过多负担，一面又要求太少回报，并在他们有刚刚有这种倾向的时候就把他们带回到正确的轨道上。而那些没有在第一时间就找律师商量的人就往往比较不幸，他们经常是没有经过仔细考虑就签下了卑诗分离协议书，但在之后又要花几千甚至上万元的代价去尝试弥补它，可谓是赔了夫人又折兵。如果您有分离协议书方面的考量，请尽早和我们联系，我们对卑诗分离协议书经验丰富的律师团队会为您争取到最好的结果，让您能够顺利迈进人生的下一个成功阶段。

卑诗省分离协议书及财产划分的相关法律

BC省新的《家庭法法令》特别强调夫妻夫妻间的协调、调节、仲裁，而把在法庭上的对峙作为最后一条出路。《家庭法法令》第四条直接指出：庭外和解绝不仅仅是打官司的附加选项，而是应优先考虑的更佳方式，如果这样达不成共识，再通过法院这条有效但却是不得已的途径来解决。第五条要求双方在早期就全面而真实地提供自己财产的信息，以助双方能更有效率地达成庭外和解。双方信息上的不一致经常会延长或升级矛盾，也可能会导致分离协议书背离公平。

我们的卑诗分离协议书律师总会细心、详尽地为我们的客户解释《家庭法法案》中有关分离协议书的重点条款。公平达成的协议书通常能得到BC法院的认可；但反过来，如果一个分离协议书严重背离了公平的准则，包括在协议的过程中有威胁、误导、霸凌等等情况的时候，一般情况下是不必指望卑诗法院会承认这样的协议书的法律效应的。

以下为《家庭法法令》中一些关于财产分割协议之重点条例的节选：

与财产划分有关的协议

92 在遵守第93条的前提下，夫妻间可以就财产和债务达成协议，协议内容可以包括以下：

1. 平等或不平等地 划分双方的财产或债务（或二者皆有）；
2. 将一般不会划分进来的财物或是债务划分进来；
3. 将一般不会刨除在外的财物或债务刨除在外；
4. 用与第87条（家庭财务与债务价值之估算）不同的方法来估算家庭的财务与债务。

在提高双方在协议方面的自由度意外，卑诗《家庭法法令》也提高了法院废除BC分离协议书的条件：

废除关于财产划分之协议
93 (1)本条适用于夫妻双方有书面的、关于家庭财产和债务分割的协议书，协议书上有双方的签名，而且每一方都有另外的至少一位证人作证。
(2) 在第一条例，同一个人可以同时为双方作证。
(3) 在一方提出申请的情况下，法院可以将上述协议书的全部或部分废除或以法院令取代，但法院只有在双方在签署合约时有下列情况之一发生的情况下才有权这样做：

1. 一方没有向另一方透露重大的财产或债务，或是另外与合约谈判有关的信息；
2. 一方不道德地利用另一方的弱点，包括对情况不知情、需求或是痛苦；
3. 一方不理解签署合约的性质或后果；
4. 其它的在习惯法(common law) 中会令合约失效的情况。

(4) 如果最高法院在综合考虑所有证据的情况下不能做出与现有合约有明显区别的法庭令，那么它可以拒绝按照上一条来执行。
(5) 尽管第(3)款有所规定，但即使在第(3)款中的条件没有一条满足，但若协议书本身的内容在考虑以下几点后严重缺失公平性，最高法院仍可以把一个协议书的部分或全部废除或者用法庭令替换：

1. 从双方签署合约到现在的时间；
2. 双方在达成合约的过程中对合约确定性的意向；
3. 双方对合约条款的依赖程度；

(6) 尽管第(1)款有所规定，但即使一份协议书没有证人证明，如果最高法院在考虑所有因素的情况下认为对其使用本条法律是合适的，那么它有权利这样做。

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