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Vancouver Unequal Division Of Excluded Property

An important BC Void Marriages Family Law Act ruling was handed down this week by the BC Court of Appeal. The decision was made against the backdrop of a high stakes multimillion-dollar international divorce case involving worldwide family property. Of particular importance to this BC Void Marriages Family Law Act appeal is the purpose of the FLA and conclusions about the intention of the Legislature. Lorne N Maclean, QC was successful counsel on this Appeal in 2019 BCCA 265 Li v Rao.

What Was The Result? 1 877 602 9900

This BC Void Marriages Family Law Act was the first case in British Columbia from the highest court to decide how parties to a void marriage are treated once there marriage has been declared void retroactively to the date of the marriage ceremony. In this case, as the husband was already married he did not have the legal capacity to marry at all. So can parties who were never legally married be entitled to sue the family property division and spousal support provisions of the Family Law Act? The answer is: Yes. Contact our high net worth international divorce lawyers if you have a complex high stakes family law case.

The husband’s appeal from the trial judge’s decision to refuse to strike the wife’s claim for division of property and spousal support under the Family Law Act was dismissed. The BC Appeal Court held that the judge did not err in interpreting the definition of “spouse”. Parties to a marriage that is declared void ab initio remain entitled to a division of family property and spousal support under the Family Law Act.

BC Void Marriages Family Law Act 1 877 602 9900

Key findings :

  1. the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament;
  2. every enactment must be construed as being remedial and must be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects;
  3. The Court is entitled to look at debates of the new Act and government explanatory publications to infer legislative intention.
  4. authors of an enactment are deemed to be aware of the existing law, statutory and common law, and it is unlikely that he or she intended to introduce, sub silentio, any important changes. In short, if the legislature intends to change existing rights it must clearly and unequivocally say so; and
  5. the incidental exclusion of parties to marriages that are void ab initio from the definition of spouse, was it intended, is inconsistent with remedial legislation that sought to expand protection for different types of spouses to include common-law spouses.
  6. section 3 of the Family law Acts definition of “spouse” must be read together with section 198. There is no reason to give a deadline for a spouse to a void marriage to sue if they are not included in the definition of spouse.

BC Void Marriages Family Law Act – What  The Did Appeal Court Say?

[6]            On April 10, 2016, the parties underwent a marriage ceremony in Las Vegas, Nevada. Mr. Rao was already married at that time, and he continues to be married to his first wife. The parties’ romantic relationship ended in the fall of 2016 when Ms. Li says she learned of Mr. Rao’s deception.

[7]           Ms. Li commenced a family action on January 24, 2017, seeking spousal support and property division, among other things. One of the major issues between the parties is entitlement to $17.65 million that Mr. Rao transferred to a real estate investment company jointly owned by the parties.

[8]            The dispute over this sum has resulted in multiple proceedings both in Canada and China. These proceedings as well as the circumstances of Mr. Rao’s $17.65 million investment are described in more detail in the reasons for judgment released concurrently with this appeal, indexed as Li v. Rao, 2019 BCCA 264.

[35]         As a result of moving the time limit for commencing a proceeding from the definition of spouse to its own section, the wording “null and void” is no longer embedded in the definition of spouse. Instead, it appears in s. 198, the time limit provision. In addition, the wording “null and void” used in the FRA was changed to “nullity” in the FLA, although nothing turns on this.

[87]         In the result, I am not persuaded that the repeal and replacement of the FRA with the FLA was intended to or does deprive an innocent person who is a party to bigamous marriage of the property division and support provisions of the FLA, or to limit those obligations to situations where the person also qualifies under the common-law marriage provisions.

[88]         Neither the history of the legislation, its context, nor the provisions themselves compel such a conclusion. Nor does such involve a “reading in”; rather, a consideration of the words of the Act, read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the objects of the Act, and the intention of the Legislature, leads to the conclusion that Ms. Li can avail herself of the property division and support provisions of the FLA.

Contact Our International Divorce Lawyers if you have a complex family law case where the stakes are high. Call us toll-free at  1 877 602 9900