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MARITAL PROPERTY - Equalization or division - Exempt acquisitions and deductions - Pre-marriage and post-separation acquisitions - Tracing - Settlements - Appeals and judicial review

Monday, February 13, 2017 @ 11:25 AM  


Appeal by the husband from a trial judgment interpreting a consent order and excluding certain family property. The parties moved in together in 2005, married in 2006 and separated in 2014. The parties maintained separate finances throughout their relationship, including bank accounts and investments. Each assumed responsibility for some family expenses. Each party agreed that their respective condominiums were excluded from equalization. In addition, each party claimed portions of other assets could be traceable to pre-relationship assets and thus constituted excluded property. Several property issues were resolved at a settlement conference and incorporated into a consent order. At trial, the parties disputed interpretation of the property division provisions in the consent order. The trial judge interpreted the consent order to require identification of family property to be determined by first considering whether any portion of the assets were excluded property. The excluded portion of any joint asset went to the party providing the asset, with the remaining value to be divided equally. Solely-owned assets were to be retained, subject to an equalization payment based on equal division. The trial judge characterized certain monetary transfers the wife received from her family as gifts and traced them into current assets excluded from division. The husband's claims of exclusion were rejected, save for a portion of the proceeds from the sale of the family home attributable to three pre-relationship assets. The husband appealed.

HELD: Appeal allowed in part. The trial judge's interpretation of the consent order reflected consideration of the parties' competing views, the relevant factual circumstances and legal principles, and resulted in the correct construction. However, the trial judge erred in the approach to excluded assets by adopting an approach relying upon precision or mathematical proof for establishing a claim. The proper test for exclusion was the civil standard of proof on a balance of probabilities. Applying the proper standard of proof resulted in allowing the husband's claim for excluded property with respect to tracing of a pre-marriage bank account and the mortgaging of his condominium to finance the family home. The claim seeking exclusion of certain stock options and a trust RRSP was properly refused. The husband's contention that he received an unfair trial was without merit. Additional arguments raised by the husband for the first time on appeal were rejected.

Shih v. Shih, [2017] B.C.J. No. 109, British Columbia Court of Appeal, P.A. Kirkpatrick, E.A. Bennett and N.J. Garson JJ.A., January 25, 2017. Digest No. 3638-006