Richmond Family Lawyers Tel 604-249-2149
Our Richmond family lawyers handle complex international family and excluded property cases involving worldwide assets. Our Richmond family lawyers also handle marriage and separation agreements that also involve division of international property. We have Richmond’s largest family law department that is fluent in Mandarin and Cantonese.
Richmond family lawyers at MacLean Family Law are fluent in Mandarin, Cantonese, Punjabi, Hindi, and Farsi. Our top rated* Mandarin speaking Richmond family lawyers , deal with equal and unequal division of international family property, Richmond excluded property and the gains made on them. Dividing Richmond property unequally requires a strong reason both under our old act family Relations Act and our current Family Law Act. Richmond family lawyers explain that agreements made before March 2013 require proof of unfairness under the Family Relations Act to be set aside and now an even higher standard of “significant unfairness” is required to succeed. A court needs to look at the parties worldwide assets and not just one asset in a vacuum to see if unequal division is appropriate.
Richmond Family Lawyers
The recent case of Xie v. Yuan 2016 BCCA 238 provides guidance to Richmond family lawyers and their clients on the test for setting aside marriage agreements.
This case involved assets in both China and British Columbia. The court was as asked to deal with a trial case that set aside a written agreement based on unfairness. The court felt the judge made errors applying the test for setting aside the agreement for unfairness and disagreed regarding the comparative contributions made by the husband and the wife and ordered a new trial with guidance on what had been done wrong at the first trial. Here are the important parts of their decision:
[69] I am also of the view that the judge’s s. 65 analysis was in any event
seriously flawed. Given that there must be a new trial on the issue of reapportionment, it is of some importance that those flaws are identified.
[70] The FRA provides for a presumptive equal division of family assets upon the occurrence of a triggering event, such as a divorce (s. 56).
[71] Section 61 of the FRA permits the parties to enter into a marriage agreement; in so doing, the parties may substitute a consensual regime for the statutory regime that would otherwise be imposed on them. As found by the judge in this case, the May 19 Agreement is a valid marriage agreement under s. 61 of the FRA.
[72] Although the parties are entitled to enter into a marriage agreement, s. 65 of the FRA gives the court the power to reapportion the parties’ assets if the provisions for the division of property under the marriage agreement would be unfair, having regard to the factors enumerated in that section: Hartshorne at para. 35.
[73] In determining whether a marriage agreement operates unfairly, the court must first apply the agreement. Where the parties’ current situation was contemplated at the time the agreement was made, and where the agreement and the circumstances surrounding it reflect consideration and response to this situation, the burden to establish unfairness is heavy: Hartshorne at para. 47.
[74] In this case, the judge, in determining that the marriage agreement operated unfairly, limited his consideration to the Residence. This was a clear error. The May 19 Agreement was not limited to the Residence. With respect, the judge could not consider whether the May 19 Agreement operated unfairly in the absence of findings concerning the parties’ other assets. A court must look at an agreement in its totality, bearing in mind that all aspects of the agreement are inextricably linked and that the parties have a large discretion in establishing priorities and goals for themselves: Miglin v. Miglin, 2003 SCC 24 at para. 84.
[75] In the Counterclaim, the Husband pleaded that the parties’ properties should be distributed pursuant to the terms of the May 19 Agreement. However, if the May 19 Agreement was set aside, the Husband claimed, in the alternative, an interest in all of the family assets. In my view, it was an error in principle for the judge to reapportion the Residence without dealing with the parties’ other assets. He could not reapportion the Residence in a vacuum.
[76] I would also find that the judge made a palpable and overriding error in failing to recognize the Husband’s contribution to the purchase of the Residence. The purchase was only possible because the Husband took out a $1 million loan secured by a mortgage. The Husband remains liable to pay that mortgage. By contributing his credit and assuming this liability, the Husband clearly contributed to the purchase of the Residence: Suen v. Suen, 2016 BCCA 107.
[77] It is also arguable whether the Wife in fact made any contribution towards the purchase of the Residence. According to the allegations in the Civil Claim, the monies used for the deposit and down payment on the Residence came not from the Wife but by way of a loan to the Husband from the Wife’s father (who seeks to recover those monies from the Husband in the Civil Action). If the allegations in the Civil Action are accurate, the Wife’s contribution to the purchase of the Residence was minimal; this may in turn impact the question of whether the May 19 Agreement is fair and any possible reapportionment under s. 65 of the FRA.
[78] A further factual issue that arises in regard to fairness is whether the Husband has, in fact, repaid the monies advanced to purchase the Residence, either to the Wife or the Wife’s father. The Husband alleges that he has. While there was some evidence at trial to support his position, the Wife denied any repayment. The judge did not make a specific factual finding in relation to that question. Such a finding is clearly necessary in weighing the fairness of the May 19 Agreement.
[79] I would also note that a complete reapportionment in favour of one party is an infrequent remedy: Kaur v. Ram, 2006 BCCA 527. When a property has increased in value due to rises in the real estate market, which appears to be the case here, it would usually not be unfair for the parties to share equally in that increase: Pasch v. Blackmore, 2011 BCCA 420.
[80] In the result, I would set aside the judge’s order in its entirety. In its place, I would substitute a declaration that the May 19 Agreement is a binding marriage agreement. Whether there should be a reapportionment under s. 65 of the FRAis a matter that remains to be determined. Determination of this issue and the claims in the Civil Action will have to be resolved in further proceedings in the Supreme Court. The trial judge is no longer seized of this matter. The parties should convene a trial management conference as soon as possible to determine how to go forward to resolve the outstanding issues.
When you have a Richmond family property division case, or a case involving Richmond family property division and international assets located outside of BC it pays you to call the highly experienced Richmond family lawyers at MacLean Family Law. Call us at 604-249-2149
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