MacLean Law is BC’s largest and one of the most experienced group of Surrey excluded property lawyers. Our South Surrey excluded property lawyers are guided by Lorne MacLean, QC.
Our top rated Surrey excluded property lawyers note that there is now a solid trend to excluding property brought into a relationship or received by one spouse alone as a gift or an inheritance. The score for cases in favour of not sharing the starting value of excluded property is at least 8:2 now and our Surrey excluded property lawyers await the first BC Court of Appeal decision expected in the next few months. What is the test our for proving the starting value is not shared? What happens if new property replaces older excluded property? The recent case of Shih explains what you must prove to win the exclusion on Surrey excluded property. Our Surrey excluded property lawyers have extracted and underlined the key parts for you:
[59] I agree with that analysis and conclude that a transfer of excluded property from one spouse into the name of the other spouse or into the spouses’ joint names does not extinguish the right of the transferor to claim the exclusion.
[60] Section 85(2) casts the burden of proof on the spouse seeking to exclude property. The parties disagree with respect to the nature of the evidence required, although they both rely on Asselin v. Roy, 2013 BCSC 1681, as supportive of their position.
[61] Ms. Shih says Asselin establishes that documentary evidence is required to prove a claim to excluded property. Mr. Shih submits that conclusive documentary evidence is not essential and that even if a party does not have documentary evidence to establish a direct link from an excluded asset into an existing asset, an exclusion will be established provided there is a sufficient evidentiary basis for the court to conclude, on a balance of probabilities, that there is such a link. He emphasizes that in Asselin, Mr. Justice Harvey found that the husband had established some excluded property on the basis of an informed estimate notwithstanding the absence of specific documentary proof of its value.
[62] As noted in Asselin and subsequent cases that have considered this issue such as Cizmic v. Cizmic, 2015 BCSC 1430, and V.J.F., the FLA reflects a more formulaic and less discretionary approach to both the identification and division of family property than existed under the former Family Relations Act. As stated by Mr. Justice Harvey in Asselin at para. 106 “more mathematical certainty from a clear evidentiary record is required.” Thus, generally speaking, a party asserting a claim to excluded property is expected to produce documents showing the value of the property at the critical times and, where relevant to the claim, documents showing the movement of the property as it changes character from one asset into another.
[63] Notwithstanding that general expectation, I do not read Asselin as holding that documentary evidence is invariably required. In Asselin, the respondent established a claim to certain excluded property on the basis that it was derived from property he owned before the relationship began, notwithstanding the absence of documentary evidence establishing the value of the property at that time. He also established a claim to other excluded property on the basis that it was derived from property he inherited, notwithstanding the absence of documentary evidence establishing the value of the inheritance or the purpose to which it was first applied. This is because Mr. Justice Harvey was satisfied that the evidence tendered was sufficient to permit him to make informed findings: Asselin at paras. 194-203.
[64] The principle that emerges from the case law is that a broad brush or rough estimate approach to identifying excluded property is not appropriate and that a party claiming excluded property must establish, on a balance of probabilities, the basis for and extent of the exclusion with precision. Where it is asserted that excluded property has changed character, each link in the chain required to trace the property into a currently owned asset must also be established. Depending on the nature of the claim in question, this may mean, in practical terms, that it is impossible for a party to meet the onus without documentary evidence. For example, where the claim in question is a bank account that one party says pre-existed the relationship the court may conclude that a party’s viva voce testimony of the balance in the account at a particular point in time several years earlier is unreliable, and therefore insufficient to meet the onus, if not corroborated by a bank statement. On the other hand, where the claim in question is founded upon an unusually memorable event, such as inheritance, the court may conclude that a party’s viva voce testimony as to the value of the inheritance is reliable without corroborating documents. In other words, in determining whether the onus has been met, the court will assess the credibility and reliability of the whole of the evidence tendered in the context of the specific case, but having regard for the precision mandated by the more formulaic approach of the FLA.
If you have a family property or excluded property issue call our Surrey family law team at 604 576 5400 or meet with any of BC’s largest family law team in Vancouver, Kelowna, Fort St John and Surrey by calling 1 877 602 9900 toll free across BC.
