The best High Net Worth Family Law Appeal Lawyers bring family law appeals or defend against family appeals involving family matters such as child custody and parenting time, child and spousal support, and family property and debt division. MacLean Law’s top-rated High Net Worth Family Law Appeal Lawyers have won Appeals from Provincial Court in the Supreme Court, in the Court of Appeal and even have a winning record in the Supreme Court of Canada. See Young v Young Canada’s most famous child custody case, Leskun v Leskun, the leading case on spousal support reviews, and Kotar v Lightle a case involving a stockbroker’s client book of business where we increased child support and we tripled spousal support.
Lorne MacLean, QC was named one of Canada’s Top 25 Most influential lawyers in part because of several recent BC Court of Appeal Wins.
High Net Worth Family Law Appeal Lawyers 1 877 602 9900
MacLean Law has won several recent appeals including:
- dismissing an Appeal of a husband after we set a record property division award in favour of our client of $23 million, monthly support of $116,000 ( yes per month!) record special costs of $1.5 million against the husband after we exposed his perjury and forgery of documents; Devathasan Trial with the Appeal dismissed.
- winning another appeal establishing that a spouse who was already married and then married a different woman while still married was still a spouse in a billion-dollar separation. Li v. Rao.
- dismissing an appeal against our client that upheld a summary trial that dismissed the husband’s property claims leaving the entire house to our client. Beninteso
- winning an appeal and a new trial dealing with distributive taxes, spousal support, and joint tenancy issues. B v B.
- dismissing an Appeal of a son in law against our client for $50,000,000 and granting our client’s appeal that the son-in-law should obtain nothing. Xu v Hu
In Xu v. Hu Lorne MacLean QC, Jonathan Wai and Susanna Chen worked tenaciously to dismiss a son in law’s $50 million claims against our client’s company. This appeal involved how the legal concept of express trust works. Our appeal of the trial award granting the husband only 25% of a multi-million dollar home was allowed which meant the son-in-law who claimed $50 million received nothing. Appeals require a careful analysis of complex facts and the law and a concise statement of a palpable and overriding error and correctness on errors in law. Here is how we won our latest Appeal concerning whether a father’s statements concerning the purchase of a house for his daughter and her husband were enough to establish the multimillion-dollar Shaugnessey home owned in the name of our client’s company was held in trust for his daughter:
[12] Express trusts are established when the certainties of intention, subject, and object have been established, and the property has been vested in the trustee: Suen v. Suen, 2013 BCCA 313 at para. 45.
[13] The onus of establishing each of the certainties lies with the party asserting the trust’s existence: McInerney v. Laass, 2015 BCSC 1708 at para. 36. The standard of proof is the usual civil balance of probabilities: Pavlovich v. Danilovic, 2020 BCCA 239 at para. 27.
[14] Certainty of intention is a question of fact; certainty of subject and object are questions of mixed fact and Law: Grewal v. Khakh, 2018 BCCA 357 at para. 24. Thus, the trial judge’s conclusion that the requisite certainties were satisfied is reviewable on a standard of palpable and overriding error, except for any extricable questions of law, which are reviewable on a standard of correctness: Housen v. Nikolaisen, 2002 SCC 33.
[15] The settlor’s intention is the critical element for the creation of an express trust. As explained by Deschamps J.: “Express or ‘true trusts’ arise from the acts and intentions of the settlor and are distinguishable from other trusts arising by operation of law”: Century Services Inc. v. Canada (Attorney General), 2010 SCC 60 at para. 83. As explained by A. H. Oosterhoff, Robert Chambers & Mitchell McInnes in Oosterhoff on Trusts: Text, Commentary and Materials, 8th ed. (Toronto: Carswell, 2014) at 193–194:
Certainty of intention is a question of construction. That intention may be express or implied, it may arise from words or acts. Technical language need not be used. A settlor may create a trust without using the word “trust” and, indeed, without fully understanding the concept of trusteeship……
Nor is there any magic in words. … intention ultimately is a matter of substance rather than form. Language alone cannot create a trust.
[Emphasis added.]
[16] However, it is not enough for the purported settlor to intend for another party to benefit; they must have intended for the other party to benefit on trust: Donovan W.M. Waters, Mark R. Gillen & Lionel D. Smith, Waters’ Law of Trusts in Canada, 4th ed. (Toronto: Carswell, 2012) at 143–144. Since Milroy v. Lord (1862), 4 De. G.F. & J. 264—adopted in BC in Re Mee (1971), 23 D.L.R. (3d) 491 (B.C.C.A.); courts have been unwilling to allow imperfect gifts to take effect as a declaration of trust. Therefore, where the intention to benefit is clear, the crucial inquiry is whether the donor intended the property as a gift or as a trust. If the benefit was intended as a gift, the court cannot convert it into a trust.
[17] Although no particular form of words is required to constitute a trust, “there must be a clear declaration of trust” to avoid imperfect gifts being given effect as trusts: Paul v. Constance, [1976] 1 W.L.R. 527 (C.A.) at 531. Further, “the donor should have evinced by acts which admit of no other interpretation, that he himself has ceased to be, and that the other person has become, the beneficial owner”: Heartley v. Nicholson (1875), L.R. 19 Eq. 233 (Eng. Ch.) at 242. In Richards v. Delbridge (1874), L.R. 18 Eq. 11, Jessel M.R. said:
It is true he need not use the words “I declare myself a trustee,” but he must do something which is equivalent to it, and use expressions which have that meaning, for, however anxious the court may be to carry out a man’s intentions, it is not at liberty to construe words otherwise than according to their proper meaning.
[Emphasis added.]
[18] Compounding the difficulty of discerning the settlor’s intention, in British Columbia, trusts are specifically exempted from the general requirement that dispositions of land be evidenced in writing: Law and Equity Act, R.S.B.C 1996, c. 253, s. 59(1)(a).
The Court of Appeal allowed our client’s Appeal to reduce the son-in-law’s $50 million claims to zero. finding:
- The trial judge’s findings of fact do not establish the certainties of intention and object necessary to establish an express trust. The statements relied on are consistent with either an imperfect gift or an unenforceable gratuitous promise to transfer the house to Ms. Hu and Mr. Xu at a future date: Oosterhoff at 248. More importantly, the words relied on do not amount to a clear declaration of trust that “admit of no other interpretation”: Heartley at 242.
- The judge did not have direct evidence about whether Mr. Hu intended to create a trust because Mr. Xu did not advance this claim at trial. Nor did the judge have the benefit of submissions on the issue.
- Because all three certainties must be proved to establish an express trust, it is not necessary to consider whether certainty of the subject matter of the trust could be established given the ambiguity in whether Mr. Hu’s words referred to the entire property or only the equity in the property.
The top-rated lawyers at MacLean Law High Net Worth Family Law Appeal Lawyers act across Canada. Call us toll-free at 1 877 602 9900
