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Family and Criminal Law office located in Kelowna, British Columbia, Canada
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UPDATE: the treatment of "excluded" property that is gifted to the other spouse

On April 28, 2016, the British Columbia Court of Appeal provided guidance as how to treat "excluded" property that is gifted between spouses. To frame the question in practical terms: If spouse #1, who owns "excluded" property, gifts that property to the spouse #2, can spouse #1 still claim the exclusion? With the release of the decision by the Court of Appeal in the case of V.J.F. v. SK.W., 2016 BCCA 186, it appears that the answer is "no". The result is that by way of the gifting, the property that is subject to the gifting loses its excluded character and becomes "family property". The court may still then assess whether unequal division of family property would be appropriate in the circumstances.

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How are oral agreements considered for Division of Property purposes?

How are oral agreements considered for Division of Property purposes? This blog post will consider the role of oral agreements pertaining to division of property only. Oral agreements pertaining to spousal support, parenting arrangements, or child support may me addressed in further blog posts. This question was considered in the case of Thomson v. Young, 2014 BCSC 799 (CanLii). In this case, the court confirmed the following: 1) that section 93 of the Family Law Act applies to written agreements only; 2) that section 95 of the Family Law Act creates an exception to the general rule stated in section 81 of the Family Law Act that on separation each spouse has equal rights to family property and equal responsibility for family debt; 3) that section 95 permits the court to consider the terms of an oral agreement when considering whether it would be appropriate to order unequal division of family property or debt, along with considering the other enumerated factors; 4) that the ordinary considerations pertaining to contractual formation are important to consider when determining whether an oral agreement has in fact been properly formed; 5) that if an oral agreement for unequal division is found not to be properly formed, then the burden remains on the person seeking for unequal division to persuade the court that unequal division is inappropriate;6) that if an oral agreement for unequal division is found to be properly formed, then the burden shifts to the person seeking for equal division to persuade the court that an unequal division would be "significantly unfair" to one of the spouses; and in addition that the "test" would be the common-law test of the court will only set aside an agreement made between spouses respecting the division of property and debt, if the division agreed to would be "substantially different" from the division that the court would order; and 7) that it is important to consider the effects of the oral agreement (if properly formed) as it relates to division of family property separately from as it relates to family debt.

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Can Spousal Support ever be Conclusively Dismissed or Waived for married spouses?

The short answer appears to be "no". If the spouses were married, then either spouse may apply for spousal support under the Divorce Act. It appears that even if a previous order or agreement provides that spousal support is "dismissed" or providesthat spousal support is payable at $0.00 per month, a spouse may still apply for an order for spousal support. However, the applying spouse must then prove to the court that a "material change of circumstances" or "significant change" now exists since the making of the original order or agreement. The case of Sandy v. Sandy, 2018 BCCA 182 provides guidance. In this case, there was a previous agreement for lump-sum spousal support agreed to in February of 2008 which provided the recipient spouse with $411,000 in support. The recipient spouse then applied for another order spousal support in 2013. At trial, the recipient was successful. The payor spouse then appealed. In the course of the judgment, the appellate court confirmed that the jurisdiction of the court to order spousal support acting under the Divorce Act cannot be ousted. However, if there was a previous order or agreement on the issue of spousal support, then the applying spouse must prove that there was a "material change of circumstance" since the making of the initial order or agreement. In the facts of this case, the appellate court found that the applying spouse did not meet the burden of proving a "material change of circumstances" and set aside the fresh spousal support order that was previously made at the trial in 2013...

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"Tracing" in family law: e.g., sale proceeds of previously-owned house put towards puchase of new house purchased during spousal relationship

What happens if the character of "excluded" property has changed? For example, what happens if sale proceeds from a sale of a house that a spouse owned prior to the start of the spousal relationship are put towards the purchase of a new house purchased during the relationship that would otherwise be considered family property? This is where the concept of "tracing" is applicable.

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Primer on Bankruptcy in Family Law Cases

Primer on the issue of bankruptcy in a family law case. DIscussion of "Triggering date"; family relations act; family law act; bankruptcy and insolvency act; trustee in vankruptcy; financial restraining orders.

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"Reapportionment" of the Increase In Value of a Company

The court considered the question of reapportioning the increase in value of a company in the case of Kuhlberg v. Hall, 2015 BCSC 2230 (CanLII).

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UPDATE on the Issue of Whether a Transfer of Otherwise "Excluded" Property Into the Name of the Other Spouse Extinguishes the Ability to Claim the Exemption

In the case of Shih v. Shih, 2015 BCSC 2108, the Court opts to follow the approach as set out in Remmem and P.G. and declines to follow the case of Wells and V.J.F.

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Proving "Excluded Property"

Section 85 (1) of the Family Law Act provides what is "excluded" family property. Section 85 (2) of the Family Law Act provides that "A spouse claiming that property is excluded property is responsible for demonstrating that the property is excluded property." The case of Shih v. Shih, 2015 BCSC 2108 (CanLII) provides guidance as to the type of evidence one must provide to the court in order to prove an exclusion.

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Corporations/Business Interests and Family Law - Part 1

The method in which the court treats corporate interests / business interests in family law is complex. Generally speaking, a corporation is treated as its own separate entity and has its own legal identity. This means, practically speaking, the corporation is its own person.

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How are Debts Treated Under the Family Law Act?

Under s. 86 of the Family Law Act, debts existing at the date of separation are considered "family debt" and are to be divided between the spouses. All debts that were incurred by one spouse after the date of separation are not considered "family debt" and are not to be divided between the spouses unless the debt was incurred for the purpose of maintaining "family property".

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How Does the Court Consider the "Threat of Future Harm" to a Child?

The standard of proof in civil cases is the "balance of probabilities". Conceptually, this means that if you can convince the court that the alleged event occurred with a 51% probability, then you should be able to succeed.

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What Is The Meaning of "Parent Apparently Entitled To Custody" Under The Child, Family and Community Service Act?

When the government intervenes in order to protect a child, the government acts under the authority of the Director of Child, Family and Community Service Act (the "Director").

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"Custody" Under the Divorce Act

The term "custody" is not defined in the Divorce Act. Rather, the term is defined in the case law.

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Summary of "Spousal Support Under British Columbia's New Family Law Act: A Preliminary Analysis" By Susan Boyd and Catherine Whitehead

Appearing in the January 2015 edition of "The Advocate" is the article by Susan Boyd and Catherine Whitehead, "Spousal Support Under British Columbia's new Family Law Act: A Preliminary Analysis". The authors state that there have been at least 30 decisions dealing with the issue of Spousal Support under the Family Law Act. There have not been any appellate decisions as of yet. The authors review 11 of these decisions, which in their view, are representative of the case law to date and because the cases extensively grapple with the the Spousal Support provisions in the new legislation. The authors come to the following conclusions: ...

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Relocation / Mobility / Change of Child's Residence Under the Family Law Act

Q: Am I able to move somewhere else with my child? Do I have to inform the court of my intention?

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Q: Is There Such Thing as a "Legal Separation"?

Q: Is there such thing as a "legal separation"?

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Family Violence and Protection Orders

In any separation, the court is generally most concerned about preventing Family Violence and ensuring that the children's well being is protected. "Family Violence" is a defined term in the Family Law Act.

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A Basic Primer on the Division of Family Property

The division of Family Property 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.

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The "Basics" of Care of the Children

The Divorce Act deals with theses issues using the terms "custody" and "access". However, the term "guardianship" is used on the case law (i.e., the cases interpreting the Divorce Act). The Family Law Act deals with these issues using the terms "guardianship", "parenting time", "parenting responsibilities", "parenting arrangements", and "contact". It is important to note that the terms under the Divorce Act do not mean the same thing as the terms under the Family Law Act.

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The "Basics" of Spousal Support (Alimony)

The truth is that there is little that is "basic" about Spousal Support (alimony). This post attempts to explain the basic mechanics of how to determine whether you should make claim for spousal support. Spousal support is made up of the following components: entitlement; amount; and duration.

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Child Support at its Most Basic

Determining the amount of child support payable is accomplished by following various steps which look at eligibility of support, payor determination, gross annual income calculations, relationship between income and number of children.

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