MacLean Law has successfully handled hundreds of Fort St John family property, Fort St John excluded property and Fort St John unequal division of family property cases since its inception in 1983. Our firm has grown to be the largest family law firm in BC and we proudly man 4 offices across BC in Fort St John and Dawson Creek, downtown Vancouver, Surrey and Kelowna BC. When the values and stakes are high in a Fort St John excluded property case it pays to call MacLean Law to protect your rights..
We handle medium to high net worth Fort St John excluded property cases as well as spousal and child support, custody and parenting time and restraining order cases. Since 2013 a new regime of dividing property applies to married spouses AS WELL AS spouses in marriage like relationships that have lasted over 2 years. The type of property the court decides it to be governs how a court deals with this property. Some is divided equally in most cases-BC family property– and some is not divided except in cases where it would be significantly unfair not to do so-BC excluded property. Waiting or procrastinating is never a good thing if you have one of these cases so contact us fast.
One of the biggest classes of excluded property is the property and the starting value of it that each spouse brings into a marriage. This class of property and specifically the starting value, or the depreciated value if it went down or got used up wholly or in part, is normally exempt from sharing by the other spouse. Only the gain on this class of property is shared and most often equally. However under certain circumstances even the gain might be divided unequally in favour of the spouse who brought this asset into the relationship in a Fort St John excluded property dispute. New or replacement property bought with proceeds of or in replacement for excluded property is also excluding property by way of “tracing” i.e. think of “follow the money”.
Fort St John excluded property can include companies, real estate, vehicles, pensions, bank accounts, investments and RRSP’s brought into the new relationship and assets acquired by gifts and inheritances to one spouse alone. The person who claims the Fort St John excluded property should be excluded from division, bears the onus of proving it is excluded and the starting value and trial date or settlement date value of same. The case law makes it clear only assets that gain in value can have that gain shared and you cannot offset an excluded asset that dropped in value during the relationship against one or more that increased in value.
In the recent case of Andermatt the BC Suprem,e court tidily explained how excluded property exemptions work in a Fort St John excluded property case:
[19] Under s. 85(1) of the FLA, the following is excluded from family property:
(a) property acquired by a spouse before the relationship between the spouses began;
(b) inheritances to a spouse;
…
(g) property derived from property or the disposition of property referred to in any of paragraphs (a) to (f).
[20] The spouse claiming that property is excluded property bears the onus of demonstrating that the property is excluded property: s. 85(2).
[21] Family debt is addressed in s. 86:
86 Family debt includes all financial obligations incurred by a spouse
(a) during the period beginning when the relationship between the spouses begins and ending when the spouses separate, and
(b) after the date of separation, if incurred for the purpose of maintaining family property.
[22] Under s. 87, unless an agreement or order provides otherwise, the value of family property must be based on its fair market value. Here, in the absence of an agreement, the value of family property and family debt must be determined as of the date of hearing.
[23] In Asselin v. Roy, 2013 BCSC 1681 at para. 105, Mr. Justice Harvey identified one of the objectives of the FLA as the creation of more certainty for litigants in the division of their assets. Harvey J. noted that “[t]he broad judicial discretion formerly available under the FRA has been replaced with a more formulaic approach to both the identification and division of family property.”
[24] As the court noted in Asselin at para. 160, there is no requirement under the FLA to establish entitlement to an asset before it is characterized as ‘family property’. Ordinary usage for a family purpose or contribution to the asset need not be shown. The court only has to determine that the property existed on the date of separation and at least one spouse either owned the property or had a beneficial interest in it.
[25] Section 85 does not provide for the tracing of otherwise excluded property beyond the asset acquired with the excluded property. If there is insufficient equity in the property acquired with excluded funds to repay the original investment, the party seeking the exclusion cannot make up the shortfall from other family property: Asselin at para. 222.
The Lawyers at MacLean Law will guide you safely through the complexities of family property, excluded property and equal or unequal division of it but you need to call us now toll free at 1-877-602-9900.
