Calgary Property Division Exemptions lawyers deal with Alberta matrimonial property that is not presumptively divided equally. Our skilled Calgary Property Division Exemptions team knows that when it comes to exemptions from Alberta matrimonial property, the quality of the evidence counts. Our Calgary family law team of Peter Graburn, Brianne Beckie, and Kaye Booth are willing to explain Calgary Property Division Exemptions to you.
Calgary Property Division Exemptions Lawyers
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When two parties separate, the property they accumulated during their relationship is presumptively divided equally between the two of them. However, under section 7(2) of the Family Property Act, RSA 2000, Ch F-4.7, certain property is exempt from matrimonial property division. Examples of exempt property are property that has been inherited or gifted, or acquired before the marriage.
New Calgary Family Law Case Explains The Rules
In Rehman v Sadouzai, 2020 ABQB 623, the Plaintiff claimed an exemption for the proceeds of the sale of a property in Pakistan that he had been given by his parents before he married the Respondent. The deed for the sale listed the total proceed from the property as 5,800,000 rupees, however, upon translation of the deed, it was revealed that the amount actually should have been 40,200,000 rupees, which increased the Plaintiff’s theoretically exempt share of the proceeds to $126,027 CAD.
The Plaintiff argued that he had established his entitlement to the exemption. The original deed had been written in an ancient Persian script, and so he had not been aware that the sale price had been inaccurate. Additionally, Pakistan did not have the proper infrastructure to trace funds, and he was unable to obtain bank records, because the person who had access to them has been ill for 6 months. The Respondent argued that the original sale price of 5,800,000 rupees should be used for the Husband’s exemption, as the amended bill of sale was unreliable.
The Court noted that exemptions must be traceable, and tracing can be inferred if there is evidence linking the exempt property to the after acquired property (at para 23). The Court held that, despite the Plaintiff’s assertions, he did not provide the court adequately reliable evidence to prove that he indeed had a $126,067 exemption (at para 47):
The evidentiary burden on Mr. Khan on this application is only to demonstrate, on a balance of probabilities that the exemption he is claiming relates to his interest in the inherited exempt property. He is not called upon to prove beyond a reasonable doubt, the details behind the financial transactions supporting his claim. The evidence he provided was internally contradictory on material points, the documentary evidence was on its face unreliable, a careful review of the documentary evidence demonstrates that the purchasers of the property in question as well as his lawyer for the transaction were aware of the documentary evidence and did not approve it as requested and there are material gaps in the flow of funds. All these combine to render the evidence compromised to the point where Mr. Khan has not met his onus of demonstrating on a balance of probabilities that he is entitled to the exemption of $126,027.
The Court concluded that the Plaintiff was entitled only to an exemption of $18,183, to which the Respondent had agreed.
Calgary Property Division Exemptions
This decision demonstrates just how important it is to be able to trace an exemption through the use of complete, accurate, and trustworthy evidence. If an exemption cannot be proven through documentary evidence on a balance of probabilities, a court will find no entitlement.
It can be difficult to know which documents will adequately demonstrate that you have an entitlement to an exemption. If you have a piece of property that should be exempt from property division, you need a lawyer that can help you sift through documents and advise you on the proof you need. Our medium- and high-net worth clients know they can trust us to inform them about their entitlements to property, and help them gather important evidence. Contact a lawyer at MacLean Law today to assist you in how to approach the division of your property.
