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.
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.
