BC Division Of Excluded Property Lawyers

BC Division Of Excluded Property Lawyers handle the rare cases where million dollar excluded property is actually divided- sometimes equally! Wait what?!

BC Division Of Excluded Property Lawyers

There is no doubt most separating spouses are unaware of this which could mean they are leaving millions on the table. Get advice on BC Division Of Excluded Property from our tier 1 UHNW family lawyers at MacLean Law. Our offices are located across BC and in Calgary Alberta.

Most divorcing British Columbians are unaware that under certain circumstances excluded property can actually be divided. Many family lawyers may also be unaware that the BC Court of Appeal approved of an equal division of an excluded property in the seminal decision of VJF on the alternative basis of significant unfairness and section 96.

BC Division Of Excluded Property Lawyers- Show Me These Cases!

We know you are dying to know why these cases have not be more publicized given their significance. The lawyers at MacLean Law often wonder why these cases are not relied upn more by family lawyers in BC. Because of this our founder Lorne MacLean, KC, Top 25 Influential Canadian Lawyer, Founder of Canadian Family Law Firm of The Year MacLean Law and invitation only IAFL fellow decided to write this blog for lawyers and the public.

BC Division Of Excluded Property Lawyers – VJF V SKW 2016 BCCA Tel: 604 602 9000

Family lawyers and many separating parties are aware of the infamous (V.J.F. v. S.K.W., 2016 BCCA 186 (CanLII decison.

However, many of you focused only on the fact at the time the excluded property gifted by a husband to his wife for creditor protection in large part lost its excluded status and got divided equally. Most of you don’t know it also made a powerful alternative finding upn which it said it would divide the property equally even if it retained its excluded status.

The BC Court of Appeal considered, in the alternative, whether a $2 million payment, even if it had remained excluded property, would be “significantly unfair” not to divide under section 96 of the Family Law Act (V.J.F. v. S.K.W., 2016 BCCA 186 (CanLII), [41]).

The trial judge acknowledged that the phrase “significantly unfair” sets a high bar, but not so high as to make it “next to impossible” to find significant unfairness (V.J.F. v. S.K.W., [41]).
Reference was made to Cabezas v. Maxim 2014 BCSC 767, where significant unfairness was found due to factors such as the respondent’s contributions to the property’s maintenance, undertaking mortgage liability, greater contribution to expenses, and the length of cohabitation (V.J.F. v. S.K.W., [41]).
The trial judge concluded that even if the property had remained excluded, it would have been significantly unfair not to order an equal division of the trust funds (V.J.F. v. S.K.W., [43]).

This alternative finding highlights the court’s willingness to apply section 96 even to excluded property under certain circumstances.

**BC Division Of Excluded Property Lawyers**

Ultra High Net Worth Family Property Division Lawyers Tel: 604 602 9000

MacLean Law has set a number of front page news records when it comes to dealing with multimillion dollar support and property division cases.

Show Me More Cases Please! Tel: 604 602 9000

Alright, we know you are wondering whether VJF is no longer good law because it was from 2016. The answer is yes, VJF is still good law and the leading case on the issue of dividing excluded property on the basis that it would be significantly unfair to do so based on length of the relationship and direct contribution.

In the BC Supreme Court case of Pelling v Pelling, the court found it significantly unfair not to divide the excluded property of Charmaine Pelling, primarily due to Shawn Pelling’s direct contributions during their marriage (Pelling v Pelling, 2024 BCSC 300). The decision was based on Section 96 of the Family Law Act, which permits the division of excluded property if significant unfairness would arise from not doing so, considering the duration of the relationship and direct contributions to the excluded properties (Pelling v Pelling, 2024 BCSC 300, [329-330]).

What was The Compensation In This Short Marriage?

No doubt long marriages combined with significant contribution gives you a real shot at division of excluded property but what about a shorter marriage with significant contribution?

The court ordered monetary compensation of $150,000 to Mr. Pelling (Pelling v Pelling, 2024 BCSC 300, [424-436]).

The facts supporting this finding include Mr. Pelling’s direct contributions:

Facilitating a financial agreement with Ms. Pelling’s brother
Advising an offer of $250,000 to Ryan to settle potential estate disputes
Securing financing and assuming liability for estate and construction-related debts
Arranging favorable financing terms
Taking on liability for debt secured against excluded assets
Constructing the “Barclay House”
Contributing to renovations at Island Truss and Manor Drive

The Pelling BC Supreme Court decision summary highlights the court’s application of the significant unfairness test under the Family Law Act to justify the division of excluded property.

Show Me A Case Where Someone Loss On A Claim For Excluded Property

Man, you are a tough audience. Alright, here is one where the marriage was 7 years and the excluded property went down in value not up although the husband made a contribution it didn’t increase value or reduce the loss in value and the husband had the benefit of living in the excluded home for free but for the contribution to improvements he made.

In the BC Supreme Court of British Columbia decision in Appleby v. Marshman, 2018 BCSC 212 the court dismissed a claim to divided excluded property:

The respondent sought division of the claimant’s excluded property, which she had owned for years prior to their spousal relationship.
The parties separated after just under seven years, during which time the property’s value had declined.
The respondent provided detailed evidence of improvements (e.g., building two barns, a woodshed, and a porch) and financial contributions (paying household and property-related expenses).
The trial judge found issues with the respondent’s evidence and approach to proving financial contribution.
While the respondent made direct contributions to maintenance and operation, the judge was not convinced these contributions led to the “improvement, operation or preservation” of the property.
The judge determined the respondent’s projects did not add intrinsic value or meaningfully prevent the property’s depreciation.
The judge also considered the benefit the respondent enjoyed from the buildings he constructed before separation.
Ultimately, the claim to divide the excluded property was dismissed.