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Tal Wolf senior associate at our downtown office of Vancouver Surrey Excluded Property Down Payment Lawyers provides this important family law update on excluded property and how or when it can be placed at risk. Be aware, that in family law the saying “nice guys finish last” is often very accurate on marriage breakdown. Contact us before making a big mistake so your excluded property remains excluded and not shared equally. In Calgary contact our exempt property lawyers to go over the rules and strategies there top protect yourself.

Our 6 offices are located in Fort St John, Vancouver, Surrey Calgary Richmond and Kelowna. Call us toll free at 1-877-602-9900. Click here to obtain an appointment.

Vancouver Surrey Excluded Property Down Payment Lawyers
Tal Wolf senior family lawyer at MacLean Law 1-877-602-9900

Our highly ranked* Vancouver Surrey Excluded Property Down Payment Lawyers have repeatedly warned the public and clients of the perils of using excluded gifts, inheritances or monies they brought into the relationship to buy or reduce debt on jointly owned property. These acts can transform excluded property into shareable family property. For those who did this years ago they are at significant risk. For the lucky ones who have not yet entered into a relationship or  for those who have kept their excluded property separate here is some sage advice from our top high net worth divorce lawyers.

*(Top Choice Award (2014, 2016, 2017), top rated reviews on Google, Yelp, threebestrated, lawerratingz.com).

Vancouver Surrey Excluded Property Down Payment Lawyers Warning

In October 2016 our BC Unmarried Common Law Spouse excluded property team blogged on the topic of whether the presumption of advancement applied to unmarried spouses in BC.  Our top ranked Vancouver Surrey Excluded Property Down Payment Lawyers discussed last year’s seminal BC Court of Appeal Case V.J.F. v. S.K.W. 2016 BCCA 186, which held that 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. The BC government has responded to VJF with a discussion paper to see if excluded property should always be excluded regardless of what it is used for or how it is later registered or deposited into bank or investment accounts.

We would love to hear what you think as you are the people most affected by these new rules. We believe a properly working family law system is the bedrock of Canadian society. Prompt resolution of family cases so people move on to successful post satisfaction lives is our goal at MacLean Family Law.

New Case Explained By Vancouver Surrey Excluded Property Down Payment Lawyers

Our team of Vancouver Surrey Excluded Property Down Payment Lawyers warned that V.J.F. case created massive risk for our high net-worth clients relying on the old notion that so long as you could trace your exclusionary contribution (i.e., money brought into the relationship, gifts from third parties, inheritance) to the down-payment on a home put in the joint names of both spouses, you could recover 100% of that exclusion in the post-separation asset division.  Just recently, however, the opinion of Mr. Justice Jenkins of the British Columbia Supreme Court in K.R. v. J.D., 2017 BCSC 182 has provided some reassurance that this type of exclusion would be preserved.

The couple married in August 2007, after having dated for approximately two years. They did not cohabit prior to their marriage. The parties separated briefly in early 2014, attempted to reconcile and separated again in May 2014, but continued to reside in the family residence until October 15, 2014 when it was sold.

The claimant took a straight-forward approach to the reapportionment of assets.  The respondent submitted that a portion of the proceeds of sale of the family residence should be excluded property under the FLA. He argued that cash investments by him in the first property he purchased, as well as any funds received from the increase in the value of that unit which were used to purchase a second residence in 2007 should be excluded under the FLA, even though the second property was a joint purchase by the parties.

VJF Distinguished Say Vancouver Surrey Excluded Property Down Payment Lawyers

Vancouver Surrey Excluded Property Down Payment Lawyers
Vancouver Surrey Excluded Property Down Payment Lawyers MacLean and Wolf

The Court held that V.J.F did not apply because that case involved the investment of one spouse’s inheritance into property owned solely by the other spouse. But no presumption of advancement would arise when one spouse’s investment was put into a property that was jointly owned by that person and his/her spouse.

Additionally, courts dealing with similar facts under the FLA have deemed the spouse’s initial investment as excluded property, so long as the party claiming excluded property established, on a balance of probabilities, the basis for and extent of the exclusion with precision: see Shih v. Shih, 2015 BCSC 2108 at paras. 64 and 103-107, aff’d 2017 BCCA 37 [Shih], Lahdekorpi v. Lahdekorpi, 2016 BCSC 2143 at paras. 93-94.

OUR Vancouver Surrey Excluded Property Down Payment Lawyers are here to help you navigate changing rules and protect your hard-earned investment in your matrimonial home even when your relationship doesn’t work out.

Best Practices For Clients Of Vancouver Surrey Excluded Property Down Payment Lawyers

We recommend you execute a marriage or cohabitation agreement before contributing any excluded property to a new property that is going to be registered in anyway other than your name alone and before using any inheritances, gifts to you alone or money or land your brought into the relationship. The cost is modest and the peace of mind and the financial protection is priceless. Call Vancouver’s Top Rated* Family Law Firm at  1-877-602-9900 now or click here to get started.

*(Top Choice Award (2014, 2016, 2017), top rated reviews on Google, Yelp, threebestrated, lawerratingz.com).