Ministry of Justice Seeking Comments on the Presumption of Advancement and Property Division Under the Family Law Act

The British Columbia Ministry of Justice has published a Discussion Paper: The Presumption of Advancement and Property division under the Family Law Act, and is seeking comments until September 30, 2016.

The issues relate to the question of whether the presumption that when a married spouse transfers property to the other spouse the spouse making the transfer intends to make a gift should apply to make property that would otherwise have been excluded from the property that is divided on a marriage breakdown included property. I wrote about the decision in V.J.F. v S.K.W., 2016 BCCA 186 in my post “What Happens to Funds Inherited by a Spouse on the Breakdown of the Marriage.” In the V.J.F. case, the husband had inherited $2 million which he used to purchase real estate in his wife’s name. The trial judge had found that the husband had failed to rebut the presumption of advancement and that the real property was a gift to the wife. The court divided the land equally between the spouses. Had the husband bought the land using the inherited funds in his own name, the land would have been excluded from the division of property because it was an inheritance.

The Ministry of Justice poses the following questions in the Discussion Paper:

1. Is it more consistent with fairness between spouses for the FLA to provide that gifts of excluded property between spouses transfer beneficial ownership or to allow excluded property to always retain its excluded status? Consider the example of RRSP’s or other investments purchased with the excluded property of one spouse and registered in the name of the other spouse? Should the value of the excluded property be returned to the transferor spouse or treated as family property under Part 5 of the FLA? 

2. The BCCA decision in VJF suggests that a spouse who wants to rebut the presumption of advancement can enter into an agreement that sets out that property exchanged between them is not a gift. Is this a practical way for spouses to address the issue? 

3. Should consideration be given to amending the legislation to explicitly abolish the presumption of advancement for the purposes of Part 5 of the FLA entirely? Or, should consideration be given to adopting the approach used in other provinces? 

4. If the presumption is not abolished for purposes of Part 5 of the FLA, should the FLA be clarified to ensure that the presumption also applies to those non-married spouses to whom Part 5 of the FLA applies?

5. The BCCA decision in VJF alludes to the usefulness of the presumption of advancement to ensure fairness between spouses. If the presumption of advancement continues to apply to matters under Part 5 of the FLA, does section 95 of the FLA provide sufficient flexibility to allow a Court to address any alleged unfairness caused by excluded property being converted to family property?

6. The BCCA decision in VJF alludes to the usefulness of the presumption of advancement to ensure fairness between spouses. If the presumption of advancement continues to apply to matters under Part 5 of the FLA, does section 95 of the FLA provide sufficient flexibility to allow a Court to address any alleged unfairness caused by excluded property being converted to family property? 

7. If the presumption of advancement is specifically abolished regarding matters under Part 5 of the FLA, does section 96 of the FLA provide sufficient flexibility to allow a Court to address any alleged unfairness that results from the tracing of excluded property? 

8. Are there other “rights under equity or any other law” that may interact with Part 5 of the FLA which require examination?

You may respond by mail or email as follows:

By regular mail: Civil Policy and Legislation Office
Justice Services Branch
Ministry of Justice
PO Box 9222, Stn Prov Govt
Victoria, BC V8W 9J1

By email: CPLO@gov.bc.ca

Continuing Legal Education Society of B.C. Wills, Estates and Trusts Conference 2016

I will be speaking at the Estate Litigation Update portion of the Continuing Legal Education Wills, Estates and Trusts Conference in October. The conference is a two-day conference, the first day, October 6, focusing on estate planning issues, and the second, October 7, on estate litigation. Registrants may register for either day, or for both days.

My topic is Proving, Rectifying and Interpreting a Will under WESA.

The conference will be held at the Vancouver Convention Centre, West Building
1055 Canada Place, Vancouver, B.C. You may also attend by webinar.

For more information, check out this link.

Courthouse in Akko, Isreal

My friend and colleague Gerry Laarakker sent these photographs of the courthouse in Akko, Israel to me.

Canadian Bar Association Resolutions relating to Medical Assistance in Dying

Last week, I attended the Canadian Bar Association National Counsel Meeting where the Canadian Bar Association passed three resolutions related to the Supreme Court of Canada deciison in Carter v. Canada (Attorney General), 2015 SCC 5, and the new amendments to the Criminal Code to permit medial assistance in dying in certain circumstances.

I was particularly interested in  the resolution, which I seconded,  relating to advance requests for medical assistance in dying:

Advance Requests for Medical Assistance in Dying

WHEREAS the Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying recommended that the federal government amend the Criminal Code to permit a request for medical assistance in dying (MAID) at any time following the diagnosis of a grievous and irremediable condition when suffering becomes intolerable;

WHEREAS the Special Joint Committee on Physician-Assisted Dying recommended that advance requests for MAID be allowed at any time after one is diagnosed with a condition that is reasonably likely to cause loss of capacity or after diagnosis of a grievous or irremediable condition but before the suffering becomes intolerable;

BE IT RESOLVED THAT the Canadian Bar Association:

1. urge the federal government to amend the Criminal Code:

a) to permit advance requests for medical assistance in dying consistent with the criteria recommended by the Provincial-Territorial Advisory Group and Special Joint Committee; and

b) to exempt from liability all persons assisting in the discussion of end of life choices, including MAID, in the context of an advance request.

2. urge each province and territory to review and, where necessary, enact legislation to permit MAID pursuant to a valid advance request, and to consider and address:

a) consistency across provinces and territories;

b) measures that adequately safeguard individuals where capacity is an issue, but do not impose undue barriers for eligible individuals who wish to make an advance request for MAID;

c) clear requirements to determine the validity of an advance request for MAID;

d) a prohibition against providing MAID based on an advance request if the grantor is capable;

e) retaining the right of every individual who has made an advance request to refuse the administration of MAID regardless of capacity; and

f) who is legally bound to comply with an advance request for MAID.

The other two were resolution on Medical Assistance in Dying for Competent Minors, and Medical Assistance in Dying and Psychiatric Conditions. 

Amendments to Strata Property Act Facilitating Termination of Strata Corporations in Effect

It is now easier to terminate a strata corporation in British Columbia. The Strata Property Act used to require the consent of all of the owners to terminate a strata corporation (although the court could allow termination with less than unanimous consent in some circumstances).

Amendments to the Strata Property Act allowing a strata corporation to be terminate by a vote of 80 percent of eligible voters came into effect on July 28, 2016. The threshold remains high, but easier to acheive than unanimity. The amendments are based on the recommendations of the British Columbia Law Institute Strata Property Law Project Committee in its Report on Terminating a Strata. 

Why terminate a strata corporation? Older buildings may deteriorate to the point where it is uneconomical to retain them in a good state of repair, and it may make more sense to terminate the strata corporation and sell the land to a developer for redevelopment.  

The amendments are summarized by the British Columbia Law Institute as follows: 

The Strata Property Act amendments are found in sections 37 to 55 of the new act. These amendments achieve two important reforms to the law: (1) they lower the voting threshold required to terminate a strata from unanimity to 80 percent of the strata’s eligible voters and (2) they require a strata to apply to court for an order confirming a resolution to terminate—a requirement that is intended to afford some protection to dissenting owners and registered chargeholders.

The amendments begin by defining this new 80-percent voting threshold, making it clear that it requires 80 percent of all eligible voters, not simply 80 percent of the eligible voters who turn up at a meeting. This new voting threshold applies to a new category of resolution, which the amendments call a “winding-up resolution,” and define as a resolution to cancel a strata plan and become tenants in common (i.e,. to terminate the strata) or to appoint a liquidator for the strata.

A special notice period of at least four weeks’ written notice will apply when a strata wants to consider a winding-up resolution at an annual general meeting or a special general meeting.

If a winding-up resolution is passed by an 80-percent vote, then in most cases the strata will be required to apply to the Supreme Court of British Columbia for an order confirming the decision to terminate. An exception applies for very small stratas. If a strata has fewer than five strata lots, then it will have the option to proceed without the necessity of applying to court. Notice that, for stratas of this size, unanimity will effectively be required to terminate, because one eligible voter will have the power to prevent the strata from reaching the 80-percent voting threshold.

Strata-lot owners and registered chargeholders must receive notice of the application. If any of them opposes termination, they will have the opportunity to make their case to the court.

In considering whether to make the order, the court is directed to consider the following:

• the best interests of the owners; and

• the probability and extent, if the winding-up resolution is confirmed or not confirmed, of

• significant unfairness to one or more

• owners, or

• holders of registered charges against land shown on the strata plan or land held in the name of or on behalf of the strata corporation, but not shown on the strata plan, and

• significant confusion and uncertainty in the affairs of the strata corporation or of the owners.

Kimberly Wallis Presenting at the CBA, Will Estate and Trust Fundamentals for Estate Practitioners

Kimberly Wallis of our firm, Sabey Rule LLP, will be among the faculty at the Canadian Bar Association, Will Estate and Trust Fundamentals for Estate Practitioners. This five-day program will be held from October 26th through October 30th, 2016 at the Westin Prince, in Toronto, Ontario. The program, chaired by Melanie Yach of Aird & Berlis LLP, is directed to junior to intermediate trusts and estate practitioners as well as general practitioners. While held in Toronto, this program is national in scope, and will draw participants from throughout Canada.

You may read the agenda here, and the registration form is available here. Please note that there is a discount on the registration fees for those registering no later than August 8, 2016.

Kimberly will be leading a workshop on Saturday, October 29th on "Busting the Trust."

Marley v. Rawlings

As I wrote in my most recent post, Fuchs v. Fuchs, I am looking at cases in other jurisdictions dealing with rectification of wills for a paper I am working on. I am not aware of any cases in British Columbia interpreting our new provision allowing for rectification of a will, section 59 of the Wills, Estates and Succession Act. Accordingly, I am looking elsewhere. Fuchs is an Alberta case. 

England has had legislation permitting rectification of wills for longer than either Alberta or British Columbia. Section 20 of the Administration of Justice Act, 1982, c. 53 is similar, but section 20 (1) is worded somewhat more narrowly than section 59 (1) of the WESA. Section 20 (1) provides:

(1)If a court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, in consequence—

(a)of a clerical error; or 

(b)of a failure to understand his instructions, 

it may order that the will shall be rectified so as to carry out his intentions. 

Section 20 was recently considered by the United Kingdom Supreme Court in Marley v.Rawlings, [2014] UKSC 2 (BAILII). In that case, two spouses intended to make wills leaving their estates to each other, with a provision that if the other did not survive by one month, each left the residue of his or her estate to Terry Michael Marley, who was unrelated, but they considered him to be like a son to them. The wills were straight forward enough, but with one problem: the husband signed will intended for the wife, and the wife intended to sign the will intended for the husband. After the husband’s death, his wife having predeceased him, the United Kingdom Supreme Court rectified his will so that it contained the typed parts of the will signed by his wife.