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Archive for the ‘Division of Property’ Category

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VANCOUVER FAMILY LAW AND BC ESTATE LITIGATION RESULTING TRUST- WHAT IS THE NEW BC TEST FOR PARENTAL LOANS OR GIFTS IN BC?

Thursday, December 15th, 2011

Vancouver Estate Litigation and Resulting Trust Claim Lawyers

As Vancouver high net worth divorce lawyers and Wills Variation Act and estate litigation lawyers we often see the interplay between how family gifts or loans are characterized in  disputed marriage breakdown cases as well as on the death of a  parent or spouse in estate litigation cases.

In many family cases  what might initially appear to have been a loan to both spouses when the couple is together during happy times at the start or during their marriage may be re-characterized as a gift to only one spouse or rather a loan to both spouses but suddenly needs to be repaid.

Until recently a fairly strict test for determining whether the initial advance of funds by a parent to their child  and their spouses which placed an onus on the advancing parent to show several  criteria for proving it to be alone has been replaced with by the concept that there is no free ride or free money presumed and that evidence of the advance for being a gift needs to be advanced to replace the presumption that the recipient holds the money for the benefit of the advancing parent on what is called a resulting trust. These cases can be emotional and complex and having a good lawyer to guide you through this tricky area is recommended. Call us at 604-602-9000 in Vancouver or at any of our other 3 offices in BC. Call toll free across the province at 1-877-602-9900.

The BC Appeal Court decision in Beaverstock v Beaverstock Estate  decision involved a $50,000 advance from the mother to her son who later died.  When the mother sought repayment of what she said was a loan from the deceased spouse and executor of his estate she was refused repayment.  There was disputed evidence that the son said the monies were an advance on his inheritance and he would not need to repay it but in contrast  that he would have to repay this loan.

The trial judge applied the  well-known decision in Locke  and noted that there were no documents evidencing the loan, no schedule for repayment was specified and no security was provided for the loan. Further the court found that the appellant mother had not demanded repayment of the loan prior to her son’s death, that there had been no repayment of the loan and that there was no reasonable expectation of repayment of loan.

While all of these factors were routinely applied to determine whether monies advanced were gifts or loans with the decision of the Supreme Court of Canada in Pecore and Madsen  establish a critical new test which has changed the law for determining whether monies advanced our loans for and repayable or gifts that are not repayable.

Here is the critical part of the judgement that resulted in the mother winning her  Appeal claim for repayment of the loan:

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BC FAMILY LAW LOANS, FAMILY DEBTS AND GIFTS AND HOW VANCOUVER BC FAMILY LAWYERS CHARACTERIZE THEM

Thursday, December 15th, 2011

BC Family Loan and Family Debt Lawyers. Wormeli, MacLean and Perpick

As BC high net worth family lawyers, we are often asked to deal with family property division cases where one spouse’s parents or relatives have contributed substantial sums towards the purchase of the family home.

 

We are also often asked to determine by one side or the other whether this advance of money was a gift to both spouses that due to marriage breakdown is now sought to be re-characterized as a loan to prevent the divorcing spouse from obtaining a windfall.

 

In still other cases claims for an unequal division in favour of the spouse whose parents advance the funds are made as well as a claim for repayment of the loan.

 

When we are approached at the start of the marriage and asked by a spouse how best to protect an advance of funds from their parents towards the purchase of property we recommend either an ownership interest be retained by the parents advancing the monies, a mortgage setting out the amount of their advance and the terms for repayment including interest rates or at a minimum some sort of written documentation which makes it clear what the advance is a gift or a loan.

 

A further complicating factor is that when parents or relatives advance money for the purchase of the home and then the mortgages obtained from a bank the bank will often seek to have the advance from the family members declared to be a gift as opposed to a loan in order to ensure that the bank has the fullest possible security. This document alone would not automatically convert a loan into a gift because the parents and proposes are essentially forced to make this statement to obtain financing from the bank. It is, however, at a minimum a complicating issue.

Call us if you are involved in a family advance of monies at the start of a relationship or if you are in a dispute over how these monies should be treated upon marriage breakdown.

 

The recent BC Court of Appeal case of Pasch v. Blackmore British Columbia’s highest court overturned a substantial reapportionment made in favour of the wife given that her parents that advance monies by way of a loan not a gift to purchase a home and that they had foregone payments during periods of time when the parties wish to allocate their money to other expenses. The Court of Appeal held that generosity from parents in the form of a loan did not justify reapportionment in favour of their child when the marriage down but rather decided that the loan would be repaid and the parties would split the  substantial gain made as a result of rising real estate values. The court dealt with the situation of what date should be used to value the husband’s 1/2 interest in the equity in the home at trial had been six-month earlier and real estate values had risen dramatically. The Court of Appeals remanded the matter for determination of the valuation back to the trial court to decide whether to value the interest in the home or to sell the home.

We extract the key parts of the judgment below:

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BC FAMILY PROPERTY LAW MAREVA INJUNCTIONS TO FREEZE BC FAMILY ASSETS LOCATED INSIDE AND OUTSIDE OF BRITISH COLUMBIA

Sunday, December 4th, 2011

BC FAMILY LAWYER AND MAREVA INJUNCTION AND RESTRAINING ORDERS LAWYER JENNIFER LIN

Most BC family lawyers in BC have never used the powerful injunction over the person and assets called the Mareva Injunction. Jennifer Lin and Lorne MacLean recently obtained such an order for their delighted client and Jennifer Lin is now kind enough to explain how this powerful tool works for experienced BC family lawyers and their high net worth clients. Call us at 604-602-9000 if you need immediate help on assets that may be hidden or disposed of as any delay by you may hurt your case.

S. 67 of the Family Relations Act allows a B.C. court to provide injunctive relief for the protection of property and the new BC Family Law Act that has been proclaimed will continue to allow for orders to restrain parties and their property when it is within British Columbia and where at least either the person or the asset is here and in only their name. This means that at any time during ongoing family law proceedings, a court can make an order restraining a party from disposing of a family asset, such as real estate, bank accounts, or shares in a company. The new Family law Act contains section 91 which carries forward the powers currently available under section 67 as follows:

  • 91 (1) On application by a spouse, the Supreme Court must make an order restraining the other spouse from disposing of any property at issue under this Part or Part 6 [Pension Division] until or unless the other spouse establishes that a claim made under this Part or Part 6 will not be defeated or adversely affected by the disposal of the property.

However, a court is unlikely to make an order under s. 67 to restrain a party from disposing of family assets or property at issue when the party and the property are outside the jurisdiction. Rather, the appropriate remedy in such circumstances may be a Mareva injunction.

A Mareva injunction, named after a seminal case in this area, Mareva Compania Naviera SA v. International Bulkcarriers SA [1975] 2 Lloyd’s Rep 509 (C.A.), was a civil remedy initially developed by the British courts to prevent defendants from removing assets out of the jurisdiction in an effort to defeat the legitimate claims of creditors.

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BC FAMILY LAW ACT EXCLUDED PROPERTY LAWYERS

Monday, November 14th, 2011

New BC Family Law Act Excluded Property Lawyers

The BC government has released new Family Law Act Bill that will propose sweeping changes to British Columbia family law. For the 1st time in British Columbia couples in marriage like relationships- also called BC common-law relationships- will now be governed by a statutory presumption of equal division of assets upon marriage breakdown. However, while allowing common-law couples to share in the presumptive equal division of assets the rules for how marriage property will be divided moving forward have also changed for married couples and unmarried persons.

For the 1st time broad types of property will be excluded from sharing upon marriage breakdown. This property is called excluded property and the section governing this property and what is excluded reads as follows:

85 (1) The following is excluded from family property:
(a) property acquired by a spouse before the relationship between the spouses
began;
(b) gifts or inheritances to a spouse;
(c) a settlement or an award of damages to a spouse as compensation for injury or loss, unless the settlement or award represents compensation for
(i) loss to both spouses, or (ii) lost income of a spouse;
(d) money paid or payable under an insurance policy, other than a policy respecting property, except any portion that represents compensation for
(i) loss to both spouses, or (ii) lost income of a spouse;
(e) property referred to in any of paragraphs (a) to (d) that is held in trust for the benefit of a spouse;
(f) property held in a discretionary trust
(i) to which the spouse did not contribute,
(ii) of which the spouse is a beneficiary, and
(iii) that is settled by a person other than the spouse;
(g) property derived from property or the disposition of property referred to in any of paragraphs (a) to (f).
(2) A spouse claiming that property is excluded property is responsible for demonstrating that the property is excluded property.

It is expected that the legislation will be debated and likely passed with little or no changes. With respect to property brought into a marriage we recommend that you  meet with us to go over your options with respect to whether you wish to start an action under the old legislation or the new legislation. We also recommend that you consider having property valued as at the date of marriage as we expect this will be an area where significant litigation will develop.

CALL US if you need help province wide at 1-877-602-9900.

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Posted in Blog Articles, Common Law and Same Sex, Division of Property | No Comments »

温哥華和列治文說廣東話和普通話的家庭和移民律師事務所 604-602-9000

Friday, October 21st, 2011

温哥華和列治文說廣東話和普通話的家庭和移民律師事務所
MacLean家庭律師事務所提供離婚以及BC的家庭資產，婚姻財產，家族企業或任何其他資產劃分的策 略規模。我們是全加拿大西部其中最優秀和最大的家庭律師事務所，擁有將近三十年的經驗為中等至高淨值的客戶及家庭提供服務。目前總共有四所分公司， 分別在 Vancouver, Surrey, Fort St. John, 和 Kelowna. 歡迎您同我們聯絡:1-877-602-9900。Maclean 家庭律師事務所擁有一組多元化的律師，能以英文，普通話，廣東話，波斯語，和印度語與您溝通。

我們所處理的中等至高淨值，信託，收入，及專業實踐的案件包括：

- 婚前和婚姻協議，以創建一個單獨的財產制度來保護資產;
- 全權及或然性信託利益，如配偶及子女的家庭資產及收入來源
- 分析財務報告，用多種收益標準估價一個被清算企業，盈利企業
- 估值日期的爭議，分居後財產升值或貶值，或財產已被轉讓或處理
- 特別股，因為許多人不理解有投票權的股票與沒有投票權的股票之間的區別，兩者俱有不同的價值和享有不同的權利
- 重視股票交易員及其他專業人士的營業帳簿
- 分割退休金數額及一次性退休金的估價值，而非不恰當地採用比其低得多的分攤值來決定其實際價值
- 糾正非正常交易付款來計算審判前後配偶各自的標準收入及公司的利潤分割
- 分析公司或專業流動資金, 因為這影響到贍養費和均等費的支付

不管您打算是否要立即啟動索賠，重大的家庭財產分割政策變化即將生效 。請趕緊來電讓我們幫助您。

普通話服務請同 Nancy Chen 聯絡。 聯絡電話： （604） 602－9000, 電郵： nchen@bcfamilylaw.ca
廣東話服務請同Jennifer Lin聯絡。聯絡電話： （604）602－9000，電郵：jlin@bcfamilylaw.ca

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Posted in Blog Articles, Division of Property, Separation Agreements, spousal support | No Comments »

Best BC Family Lawyer Tips – The Sale of Your Matrimonial Home Upon Marriage Breakdown and Separation

Monday, September 19th, 2011

You Gave Me My Life Back Says Our Happy Client

The Sale of your BC Matrimonial Home

At the time of marriage breakdown, separation or divorce selling and dividing the proceeds of the Family Home is an issue that we as BC family lawyers deal with daily for our clients at our Vancouver, Kelowna, Surrey, and Fort St. John family law offices.

As British Columbia’s largest and most diverse family law firm with 10 lawyers and 4 offices across British Columbia and with lawyers who speak Farsi, Mandarin, Cantonese, Punjabi, Hindi, as well as English, we love to provide free information to the public through the use of social media. This free information does not replace the critical need for parties going through BC family law separation and BC divorce to meet with a qualified BC family law lawyer however. If you need help call us toll-free at 1-877-602-9000.

The matrimonial home is often the most valuable and emotion laden family asset a couple or family may have. Although it seemed easy to combine your incomes and assets to invest in new endeavours such as your family home, separating your contributions may seem difficult if not impossible at points.

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Vancouver and BC Divorce Divorce Lawyer Lorne MacLean Warns- Don’t Leave the Matrimonial Home!

Monday, June 27th, 2011

Lorne MacLean Family Lawyer In San Francisco


What is “exclusive possession of the matrimonial home” and is it wise to leave the home if your BC marriage is in trouble?
Sometimes it feels like you can’t take it anymore and you have to leave the family home for your own sanity. Sometimes you feel you need to leave the matrimonial home because you feel guilty and you want to be a hero. Sometimes you feel you must leave the family residence because you are being harassed and bullied into leaving by a demanding and unreasonable spouse.

Lorne MacLean, Vancouver family and BC divorce lawyer warns that leaving the home is often a foolish and potentially fatal legal misstep.
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Kelowna Family Asset Valuation Lawyer, Vancouver and Fort St John BC Family Property and Business Asset Division Lawyers

Thursday, June 2nd, 2011

Lorne MacLean Business Asset Lawyer-New BC Family Relations Act Property Changes Coming!


MacLean Family Law Group provides divorce and BC family asset, marital property and family business or “other asset” division strategies. We have been handling medium to high net worth family property division cases for nearly 30 years and have one of the best and largest family law firms in Western Canada with four offices located in downtown Vancouver, South Surrey, Kelowna and Fort St John, BC. You can call us at any office or toll free at 1-877-602-9900. We speak English, Cantonese, 我們為客户瓣理離婚手續, 財產分配， 小孩撫養權 Punjabi, Farsi and Hindi.溫哥華離婚律師

Medium to high net worth asset, company, professional practice, trust and income cases that we handle include:

-prenuptial and marriage agreements to create a separate property regime and protect assets;
-discretionary and contingent trust interests as family assets and sources of income for spouses and their children;
-financial statement analysis to value a business on a liquidation, going concern through multiple of earnings basis;
-valuation dates issues where assets go up and down in value after separation or where assets have been disposed of;
-special shares as many people do not understand that voting and non voting shares have different values and rights:
-valuing a book of business for stock brokers and other professionals;
-split pension amounts and lump sum pension valuations to detertmine the real value as opposed to improperly using much lower contribution values;
-non-arms-length payments correction for calculating each spouse’s guideline incomes and strategies to divide company profits before and after trial;
-analysis of company or professional working capital as it impacts support and equalization payments;
-imputed income from employment for both the paying and receiving spouse and how capital is used based on cases following the Leskun, Supreme Court of Canada case Mr. MacLean represented the husband in.

Significant family property division changes are due to take effect immediately and different strategies apply to whether you want to start a claim immediately or not. Don’t be in the dark-call us.

Mr. MacLean was one of the first family lawyers in BC to seek restraining Orders to divide profits from a family business before trial in half rather than merely seeking spousal support in a much lower amount. Mr. MacLean also successfully reapportioned a business in front of the husband and business owner 75/25 in his favour-a rarity! If you need aggressive and focused stratgeies in cases involving claiming or defending a division of these assets call us immediately at any of our 4 offices throughout British Columbia. Delay only makes things worse in many cases.

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Posted in Blog Articles, Child Support, Custody and Access, Division of Property, spousal support | No Comments »

Second Marriage Divorce for Older Married Persons and Mental Capacity Required to Separate in BC- Don’t Fall Asleep at Bingo It Can End Your Marriage!

Tuesday, May 31st, 2011

Lorne MacLean Elder Law Divorce Lawyer


The aging population of BC married couples, as well as those unmarried spouses who live together in a marriage like relationship (given changes proposed to our Family Relations Act) means there are now far more divorcing or separating couples over the age of 60. A special problem for separating couples exists when parties are of an advanced age and their mental acuity declines. Second marriages of elderly spouses open the door to disagreements between this spouse’s children and the new spouse regarding the assets and estate of the elderly bride or groom particularly near the end of the spouse’s life.
A more critical concern is what happens when the elderly spouse loses or begins to lose their capacity to manage their own affairs as the risk of improper influence by old and new family members at this time rises.
Finally, triggering events that are required for property division rights in BC become critical when one or both parties become ill, mentally infirm, or are near death.
The most common event used to provide property rights to a separating spouse is called a section 57 declaration that the two married spouses have no prospect of reconciliation. The highest court in BC just dealt with the issue of what the level of mental fitness a separating spouse must have in Wolfman-Stotland.

In this case the wife with cognitive impairment felt that the fact her husband fell asleep at Bingo was a “divorceable offense”! Here’s what the BCCA said on the issue of what level of mental capacity is needed to separate:

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BC SPOUSAL SEPARATION AND SECTION 57 DECLARATION LAWYERS- WITH SURREY FAMILY LAW OFFICE, VANCOUVER DIVORCE LAW OFFICE AND FORT ST JOHN FAMILY LAWYERS OFFICE

Wednesday, May 18th, 2011

BC FAMILY SEPARATION AND DIVORCE LAWYER LORNE MACLEAN


DID YOU KNOW THAT BC HAS A DEFERRED SHARED FAMILY ASSET AND FAMILY PROPERTY REGIME? YOU SHOULD BE AWARE OF VARIOUS BC FAMILY TRIGGERING EVENTS AND SECTION 57 DECLARATION OF NO PROSPECT OF RECONCILIATION STRATEGIES DEPENDING ON WHO OWNS A PARTICULAR FAMILY ASSET.

Post BC family separation triggering events that cause the BC shared family property regime to be activated need to occur because simply separating does nothing! These Vancouver BC separation activating or triggering event events include signing a proper separation agreement dealing with all or most issues particularly property on a final basis, a divorce, an annulment (very rare!) or most commonly early on in separations a SECTION 57 declaration the parties have no reasonable prospect of reconciliation!

HERE ARE SOME BUT NOT ALL OF THE BASIC STRATEGIES YOU MAY WANT TO CONSIDER TO PROTECT YOURSELF BY CONSIDERING A TRIGGERING EVENT

1. If you have a pension you should get an event triggering the division of the pension ASAP- if your spouse does there’s no rush!

2. If you own 100 percent of the Matrimonial Home and your spouse has a number of creditors circling with debts you are not a guarantor for DON’T DARE ASK FOR A TRIGGERING EVENT. IF YOUR SPOUSE IS THE SOLE OWNER AND HAS CREDITORS get one ASAP!

3. If you are separating from your spouse and you have substantial joint tenancy assets such as a home and investment property and you are in dire health seek a declaration immediately because if you die these assets will pass entirely to your spouse and other assets solely in their name will not be able to be claimed by your estate. The opposite approach applies if your spouse is ill.

4. If your spouse is acquiring lucrative assets you may wish to wait on obtaining a triggering event and obviously if you are acquiring post separation assets you will likely want to seek one right away.

The area is a potential minefield for the unwary and you need to consult a lawyer immediately if you are thinking about separation or are already separated and have not obtained legal advice.

Here is the key portion of the Family Relations Act that sets out how the shared BC property regime is triggered:

56 (1) Subject to this Part and Part 6, each spouse is entitled to an interest in each family asset on or after March 31, 1979 when

(a) a separation agreement,
(b) a declaratory judgment under section 57,
(c) an order for dissolution of marriage or judicial separation, or
(d) an order declaring the marriage null and void
respecting the marriage is first made.
(2) The interest under subsection (1) is an undivided half interest in the family asset as a tenant in common.
(3) An interest under subsection (1) is subject to
(a) an order under this Part or Part 6, or
(b) a marriage agreement or a separation agreement.
(4) This section applies to a marriage entered into before or after March 31, 1979.

Declaratory judgment
57 On application by 2 spouses married to each other or by one of the spouses, the Supreme Court may make a declaratory judgment that the spouses have no reasonable prospect of reconciliation with each other.

If you are separated or separating see a lawyer immediately to prevent some real potential headaches or shall we say heartbreaks.

We can’t protect your heart but we can protect your rights.

Call Lorne MacLean at 1-877-602-9900 toll free anywhere in North America.

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