MacLean Law’s Unequal Property Division Excluded Property Lawyers took note a new case of unequal division and excluded property released this week. A husband who had solely acquired and contributed to a home and other property received unequal division of it. Although he placed the home in joint names the court held his exclusion remained intact. The case provides important guidance for our top rated* Unequal Property Division Excluded Property Lawyers and our clients.
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Unequal Property Division Excluded Property Lawyers Warn Test High
Our Unequal Property Division Excluded Property Lawyers have warned spouses that the test of significant unfairness to obtain unequal division of family property is strict. Our highly rated* Unequal Property Division Excluded Property Lawyers also warn clients not to place excluded property in joint names for fear the exclusion from sharing will be lost. Earlier articles on the topic can be found here.
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New Case Of Successful Unequal Division Guides Unequal Property Division Excluded Property Lawyers
In Bamford v. Mulyati 2017 BCSC 945 the court looked at the history of contribution, the fact it was a second marriage and the intention of the husband when he put his home in joint names to decide he got unequal division of it although he had placed it in joint names:
[10] In 2004, Mr. Bamford transferred the Family Home into both his name and that of Ms. Mulyati. In December 2008, Mr. Bamford withdrew $263,970.30 from his Gaire MacLean investment and placed it in his BMO Account, as he was very unhappy with the investment’s significant losses. In December 2008, Mr. Bamford used part of these funds to pay off the BMO mortgage on the Family Home in the amount of $104,143.63. On January 31, 2009, he also used the monies from the Gaire MacLean investments to purchase two joint investment portfolios with Edward Jones (“Edward Jones Portfolios”) worth a total of $150,000. The Edward Jones Portfolios were held by both Mr. Bamford and Ms. Mulyati.
[22] In October 2016, Mr. Bamford was granted leave to further amend his Notice of Family Claim, asserting a 100% reapportionment of all family property to Mr. Bamford.
27] Section 87 of the FLA requires, unless an agreement or order provides otherwise, that the value of family property be based on fair market value at the date of trial. However, the court has the discretion to order an alternative date for valuation in order to avoid significant unfairness relating to a spouse’s post-separation contribution. Counsel for Mr. Bamford refers to the decision in Slavenova v. Ranguelov, 2015 BCSC 79 in support of her assertion that the valuation date should be the date of separation. In Slavenova, Mr. Justice Savage reasons:
[53] … In short, the FLA provides two alternate routes to address potential unfairness that may arise from a party’s post-separation contributions, namely s. 87 and s. 95. Under s. 95 a court can order reapportionment to address any “significant unfairness” that may arise from an equal division of property and debt in light of the spouse’s post-separation contribution. Alternatively, under s. 87 the Court may depart from the date of hearing or agreement as the valuation date.
Significant Unfairness Found and Unequal Division Awarded
[28] A significant unfairness does arise in this case. The evidence before me establishes that Ms. Mulyati has not contributed towards, and has not had any involvement in, either preserving, maintaining or managing any of the family assets identified above since her sudden departure in May 2013. Further, Mr. Bamford has been responsible for caring for the family assets in each of these respects. In making this assessment, I have specifically considered each of the family assets identified above and I am satisfied that the date of valuation should be the date of separation for each family asset. I have concluded that it would be significantly unfair to apply the date of trial in this case in light of the considerable efforts and contributions of Mr. Bamford in maintaining and caring for the family assets since separation, coupled with the lack of any contribution by Ms. Mulyati in this regard: see also K.A.L. v. K.J.L., 2017 BCSC 651.
[34] I am satisfied that when Mr. Bamford transferred property into Ms. Mulyati’s name as well his, he did so on the condition that he and Ms. Mulyati would be together until he died and that once he passed away, she would have his home and investments. I find that Mr. Bamford, at all times, intended that in order for Ms. Mulyati to be entitled to the Family Home and the Edward Jones Portfolios, she would be required to remain married to him until his death. There was no absolute gift to Ms. Mulyati: see Remmem v. Remmem, 2014 BCSC 1552; Wells v. Campbell, 2015 BCSC 3. In reaching this conclusion, I have also considered the reasoning in Oleksiewicz v. Oleksiewicz, 2017 BCSC 228; that case applies Pecore, and supports a fact specific inquiry into the intention of transferor:
…….Before reaching a final conclusion concerning the exclusion of property in this case, it is necessary to address the question of the impact of the parties’ decision to hold title to the Home in joint tenancy on the result.
……..No presumption of advancement arises when one spouse’s investment is put into a property that is jointly owned by that person: see Hu v. Li, 2016 BCSC 2131. In that case, MacIntosh J. set out the correct approach to the presumption of advancement analysis when property from one spouse is transferred from one spouse to another. He said:
[39] The analytical framework was expressed as follows in Wu v. Sun, 2010 BCCA 455 (CanLII) at para. 18:
The Supreme Court of Canada has made it clear in cases such as Pecore v. Pecore, 2007 SCC 17 (CanLII), [2007] 1 S.C.R. 795, that it is a question of fact as to what is the intention of a party transferring property to a third party for no consideration. In some circumstances, it may be appropriate to infer a resulting trust or a constructive trust, but the conclusion to be inferred in the individual case will depend on a consideration by the trier of fact of all the circumstances of the case. The trial judge in the present case concluded on his consideration of all the evidence that the mother, at the time of the transfer of the Drummond property from her to her son in 1999, intended to divest herself of ownership of the property and transfer that ownership to her son. In a recent case in this Court, Fuller v. Harper, 2010 BCCA 421 (CanLII), the Court, after referring to the comments of Mr. Justice Rothstein in Pecore, noted that the effect of any presumption of resulting trust only will be requisite after all the evidence and the surrounding circumstances in which the transfer was made has been weighed and considered by the trial judge. It is only if the trial judge is unable to reach a conclusion about the transferor’s actual intention at the time of the transfer that it may become necessary to apply such presumption to possibly tip the scales in favour of the transferor of property or the donor of funds. …
[Emphasis added.]
[40] That passage underscores the test in Pecore, at para. 55, that the trial judge must “weigh all the evidence relating to the actual intention of the transferor.” That is a factual inquiry. This Court’s primary task therefore is to examine all of the evidence in order to determine what Thomas and Anita intended in 1996 and 2004.
[35] As such, the Family Home and the Edward Jones Portfolios remain excluded property.
[36] I have also concluded that Mr. Bamford’s late wife’s jewellery is excluded property. I accept Mr. Bamford’s evidence that this jewellery was to be passed down to his nieces.
