V.J.F. v. S.K.W., 2016 BCCA 186

• Judge: Newbury, Tysoe and Groberman, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: April 28, 2016
• Jurisdiction: British Columbia
• Citations: 2016 BCCA 186;(2016), 386 B.C.A.C. 180 (CA)

V.J.F. v. S.K.W. (2016), 386 B.C.A.C. 180 (CA);

    667 W.A.C. 180

MLB headnote and full text

Temp. Cite: [2016] B.C.A.C. TBEd. MY.003

V.J.F. (appellant/claimant) v. S.K.W. a.k.a. S.K.F. (respondent/respondent)

(CA42767; 2016 BCCA 186)

Indexed As: V.J.F. v. S.K.W.

British Columbia Court of Appeal

Newbury, Tysoe and Groberman, JJ.A.

April 28, 2016.

Summary:

The husband's terminally ill employer gifted him and others in the corporate "inner circle" $2,000,000 to protect them against possible future liability arising from their roles as directors in the employer's various companies. The monies, when received, became "excluded property" under s. 85 of the new Family Law Act (2011). The husband "gifted" the monies to his wife to purchase land and construct a new family home. Title was registered solely in the wife's name to protect the husband from possible future claims by creditors. The spouses separated. The trial judge held that the monies had lost its "excluded property" status when gifted to the wife and was divisible between the spouses as family property. The husband failed to rebut the presumption that an equal division would be "significantly unfair" (ss. 95(2) and (3)). The husband appealed.

The British Columbia Court of Appeal dismissed the appeal. The trial judge did not err in finding that the husband clearly and unequivocally gifted the monies to his wife. Reliance on the presumption of advancement was not necessary. The "tracing" provisions of s. 85(1)(g) did not apply to have the gifted monies retain their excluded property status. The court stated that "the new [Family Law Act] scheme does not constitute a 'complete code' that 'descends as between the spouse' and eliminates common law and equitable principles relating to property. Rather, the scheme builds on those principles, preserving concepts such as gifts and trusts, and evidentiary presumptions such as the presumption of advancement between spouses". The trial judge did not err in finding that equal division of the monies would not be "significantly unfair" (ss. 95(2) and (3)).

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Family Law - Topic 641

Husband and wife - Marital property - Transfer between spouses - Presumption of gift or advancement - See paragraphs 48 to 83.

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions (incl. judicial reapportionment) - See paragraphs 48 to 83.

Family Law - Topic 880.3

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - Gift, trust bequest or award - See paragraphs 48 to 83.

Family Law - Topic 880.18

Husband and wife - Marital property - Distribution orders - Tracing - See paragraphs 48 to 83.

Counsel:

J.A. Rose, Q.C., and P.M. Daykin, Q.C., for the appellant;

L.J. Hamilton and J.F. Brown, for the respondent.

This appeal was heard on March 11, 2016, at Vancouver, B.C., before Newbury, Tysoe and Groberman, JJ.A., of the British Columbia Court of Appeal.

On April 28, 2016, Newbury, J.A., delivered the following judgment for the Court of Appeal.