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Section 150 of WESA sets out that a personal representative of a deceased person may commence or continue the proceeding that the deceased could have commenced or continued, with the same rights and remedies to which the deceased person would have been entitled to if living.

MacLean Law’s Excluded Property FLA Presumption of Advancement lawyers are led by Lorne N. MacLean, QC. BC’s new Family Law Act and how it impacts excluded property placed in joint names or used to buy, renovate or pay down debt on jointly owned properties remains in legal turmoil. The BC Court of Appeal released the seminal VJF case but a new BC Supreme Court decision points out that there are powerful legal interpretation reasons to exterminate the presumption of advancement in British Columbia. Additionally a number of other post VJF cases have upheld exclusions on monies used to fund joint properties.

Excluded Property FLA Presumption of Advancement
Lorne MacLean, QC founder MacLean Law Family Lawyers

BC Excluded Property FLA Presumption of Advancement Lawyers

In H.C.F. v. D.T.F., BC Supreme Court Justice Voith prepared a compelling argument for saying the presumption of advancement is dead in BC. How can this be when VJF says it is alive say some family lawyers?

This case is now going up to the BC Court of Appeal so you will need to stay tuned to see if any change in the law on presumption of advancement in BC occurs at the appeal court level. 

Excluded Property FLA Presumption of Advancement 604-602-9000

So what was the excluded property at issue in this hard hitting new family law case of Excluded Property FLA Presumption of Advancement?

[72]         The dispute between the parties focuses on three amounts:

i)       $238,444 that Mr. F. received from the sale of a home that he owned before the parties met;

ii)     approximately $320,000 that Mr. F. received in February 2013 as he transferred from TD Evergreen to ScotiaMcLeod; and

iii)    $354,000 that Mr. F. and Mrs. F. received when Mr. F. was transferred to Vancouver in May 2004 and when he sold the “book of business” that he had held.

Court Decides 2 of 3 Sums Above Were Excluded Property

The proceeds from the sale of his stockbroker’s book of business were not excluded because:

[98]         In this case I do not agree. This is for two reasons. First, I accept that many or most of the clients that Mr. F. had in May 2004 would be the same clients that he had when he moved to ScotiaMcLeod in February 2003. There would inevitably, however, have been some new clients that joined him after February 2003 and when he was with Mrs. F. Second, Mr. F. chose, for tax or income splitting purposes, to place a portion of the proceeds from the sale of his “book of business” in Mrs. F.’s name. This gives rise to similar considerations as the court expressed in F. (V.J.) when the appellant chose to place the family home in his wife’s name as protection against creditors. Mr. F. cannot “have it both ways”. I do not, accordingly, consider that this sum of money is “excluded property” under s. 85 of the FLA.

See Lorne MacLean, QC’s precedent setting BC Appeal Court and Supreme Court of Canada win for his client on stockbroker’s book of business being family property to be divided.

Excluded Property FLA Presumption of Advancement Is It Dead and If Not Should It Die Now?

[148]     When considering the presumption of advancement — issues of property division and “excluded property” under the FLA — the intended equivalency of legal position and treatment, for different types of unions, is directly relevant.

[149]     The ongoing application of the presumption of advancement under the FLA would mean that of these various potential forms of relationship, within which all partners are “spouses” for the purposes of the FLA, the only subset of relationship to which the presumption of advancement would apply would be a gift from a man to women in a traditional marriage.

[150]     I will return to this but such a result would be incoherent. It would allow the presumption of advancement, an anachronistic legal principle, to continue in the context of legislation that was intended to recognize and reflect the broader and changed nature of relationships in present day society. It would also cause different property division rules and regimes to apply to different types of relationships.

[155]     I emphasize the strong presumptive equal sharing or responsibility for debt that is found in s. 81 because it is, again, more reflective of contemporary society and of present day realities. Part of that reality is that men and women are more often financial equals. Furthermore, as I have said, many couples may be in their second or third marriage. They often bring assets with them to their new relationships. This enhanced foundation for a presumptive equal sharing of family property and debt is conceptually incompatible with the presumption of advancement.

[168]     To the extent the FLA was intended to treat men and women as equal for the purposes of property division under the FLA, the continued application of the presumption of advancement, which only arises if the husband is the transferor and the wife the transferee does not cohere with the objects of the FLA. To the extent that the presumption of advancement is applied differently between traditional marriages, common law relationships, and same-sex marriages, the continued application of the presumption of advancement is incoherent with the legislative objective of putting all such unions or marriages on an equal footing.

[172]     The presumption of advancement’s unequal treatment of men and women in traditional marriages and the unequal treatment of different kinds of unions or relationships suggests that the presumption of advancement ought not to apply within the FLA. For the presumption of advancement to have continued life would create an “absurd” consequence.

Excluded Property FLA Presumption of Advancement Justice Says FLA Trumps Presumption

[184]     I have concluded that the presumption of advancement has no ongoing application under the FLA. I am also satisfied that there is no basis, on account of “substantial unfairness”, to divide the $558,443.79 that is properly excluded property. The amount of $558,443.79 is to be credited to Mr. F. from the sale of the Churchill Property after the payment of applicable commissions and other expenses.

[185]     If, however, I am mistaken in the foregoing conclusion and the presumption of advancement continues to have relevance under the FLA then Mr. F. did not, on the whole of the evidence, rebut the application of the presumption.

Excluded Property FLA Presumption of Advancement cases are complex and confusing even for judges and lawyers so it pays to hire someone who deals with this complex area daily and who has over three and a half decades of legal experience handling high stakes financial disputes. 

Excluded Property FLA Presumption of Advancement
BC Family Lawyers 1-877-602-9900

Call Lorne N. MacLean, QC today at 604-602-9000 to protect your excluded property.