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In today’s blog, our BC Common Law Marriage Presumption of Advancement team, addresses a key question that has developed in recent weeks as a result of a blockbuster decision from our highest court on family property division:
Does the presumption of advancement apply to unmarried common law spouses in BC?
This will be a very important question for many as it is increasingly common for modern Canadian couples to forgo a legal marriage and remain as “common law” spouses. Common law relationships involving unmarried couples are also called “marriage like relationships.” Our new family property laws treat common law couples the same as married couples under our new BC Family Law Act.
With the Supreme Court of Canada denying the leave to appeal of V.J.F. v. S.K.W. 2016 BCCA 186, the Court of Appeal’s holding in that case is now law in BC and it has a huge impact on dividing property for married and unmarried couples who separate. VJF involves how property from one spouse later registered wholly or in part with the other gets divided.
Our BC Common Law Presumption of Advancement lawyers are multiple award winners of the Best Family Law Firm in Vancouver according to prestigious Top Choice Awards.
BC Common Law Presumption of Advancement: What Is It?
Specifically, and as we have noted in previous blogs, the court in VJF held the excluded property regime under the Family Law Act is not a “complete code” that “descends as between the spouses” upon separation, but rather builds upon existing common law and equitable principles, preserving concepts such as gifts and the presumption of advancement.
The BC common law presumption of advancement is based on the presumed intention of the transferor and traditionally applies in husband-wife relationship. Under this presumption, a transfer or property from husband to wife or vice versa will be presumed to be a gift; the presumption can be rebutted with evidence of a contrary intention.
BC Common Law Presumption of Advancement: Why Should I Care?
This is relevant where a person transfers excluded property (e.g., an inheritance, a gift or property brought into the relationship) into joint names with his or her spouse. In such a scenario, as per VJF, the exclusion would be lost and the transfer would be presumed a gift. The property now in joint names would be subject to equal division under the Family Law act if 100% was transferred and likely a 75/25 division if placed in joint names.
Many spouses have no clue of the financial calamity an uniformed property transfer creates for relationship breakdown.
The BC courts have not yet tackled whether the principles in VJF and the presumption of advancement will apply to unmarried spouses. But MacLean Law says the following:
The FLA was designed to “better fit with people’s expectations about what is fair” and to make family law simpler: V.J.F. v. S.K.W. 2016 BCCA 186. One of the big changes under the FLA is that married persons and so called “common law” spouses are treated equally. Under the FLA, “spouse” is a defined term, including both married persons and persons living in a “marriage-like relationship” for a period of two or more years.
In V.J.F. v. S.K.W. the Court of Appeal stated that the FLA is not a complete code; it must be interpreted with reference to common law principles; s. 104(2) of the FLA states that rights arising under Part 5 “are in addition to and not in substitution for rights under equity or any other law…”; and that the “common law is “always part of the legal context in which legislation must be read.”
When discussing the interaction of common law principles with the FLA, the court in V.J.F. v. S.K.W made no distinction between married versus “common law” spouses; the court simply refers to “spouses.” Indeed, when stating the issue before it, the court stated “The specific issue raised here relates to excluded property gifted by one spouse to the other during the marriage” (emphasis added). Similarly, referencing common law principles, the court stated that the FLA “builds on those principles, preserving concepts such as gifts and trusts and evidentiary presumptions such as the presumption of advancement between spouses (emphasis added).
Given (1) the general spirit of the FLA, which recognizes modern relationships and aligns with what is fair; and (2) the use of the term “spouse” in V.J.F. v. S.K.W (as opposed to “married spouses” or “husband and wife”) with regards to those relationships to which common law principles apply under the FLA, it appears that, just as the FLA applies to married and “common law” spouses equally, the common law principles preserved under the FLA (such as the presumption of advancement) also apply to married and “common law” spouses equally.
To assert that the common law principles which supplement the FLA apply to married spouses only flies in the face of the spirit of the FLA, the meaning of “spouse” under the Act and disregards the modern Canadian relationship.
Indeed, the presumption of has been applied to unmarried spouses in numerous BC cases: see, for example, J.A.B. v. H.W.C., 2008 BCSC 644, Manley v. Schiller 1980 CanLII 679 (BC SC), (1980), 22 B.C.L.R. 61 (S.C.) and Hedberg v. Heaps,[1999] B.C.J. No. 1309 (Q.L.) (S.C.), varied on other grounds 2000 BCCA 648 (CanLII), 2000 BCCA 648, 11 R.F.L. (5th) 126.
BC Common Law Presumption of Advancement Should Apply To Growing Numbers of Unmarried Spouses
If BC courts are to henceforth decide in accordance with the overall scheme and intention of the Family Law Act and modern Canadian relationship, we say that VJF and the presumption of advancement should apply to non-married spouses as well.
Contact any of our top rated BC Common Law Presumption of Advancement family lawyers today if you are a unmarried spouse seeking your right to “excluded property” transferred into your name! Delay is never good particularly in a family case where significant money is at stake so meet with us for a no obligation half hour consultation.
