Your Family Lawyer in Surrey
If you’re facing issues related to divorce, prenuptial agreements, child support, child custody or any other assistance from a family lawyer in Surrey, contact MacMillan Tucker. We deal with cases involving division of assets for married and common-law couples, including pensions, businesses and mobility applications for separated parents who want to move along with their children or adoption. We will represent you no matter what your needs are when it comes to family law, from uncontested divorces to difficult, contentious custody disputes.
Please go through the articles given below to know more about the cases related to family law services.
IT’S THE LAW – By Stuart D. Robertson
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
THE EXCLUDED GIFT
The parties had been married for 9 years. They had no children. Prior to the relationship, the Husband owned a house that the Wife moved into. The parties lived in this house for their entire relationship. The parties both spent a lot of time and money-making improvements to the home that was close to 100 years old. About 6 years into the relationship, the Wife was added to title to the house so that the Husband and Wife were on title as joint tenants. The Husband says he did this for estate planning purposes, and to take advantage of the homeowners grant and save on taxes, as the Wife was several years older than the Husband. The Wife thought of the transfer as a gift for all the hard work she had put into maintaining and improving the house.
When the parties separated, the Wife sought an equal division of the house and all their savings. The Husband was prepared to share half the increase in the value of the house, but he wanted credit for the value of the house prior to the relationship.
What Would You Do If You Were the Judge?
The Husband was trying to claim that the pre-relationship value of his house was “excluded” property under the Family Law Act (B.C.). In this case, the court determined that because the Husband voluntarily transferred the house into the Wife’s name, it was intended as a gift to his wife, regardless of his excuse that it was for estate planning purposes and tax savings.
HOWEVER, the law was amended earlier this year to address this sort of a scenario. This amendment to the Family Law Act (B.C.) now clarifies that the value of pre-relationship property may be excluded “despite any transfer of legal or beneficial ownership of the property from a spouse to the other spouse” (s.85(3)). This amendment would likely have changed the outcome of this case such that the Husband would have received credit for the pre-relationship value of the home.
Cases such as these are always fact specific, as there are a number of different factors the court can consider. If you face a situation similar to the one above, we recommend that you obtain legal advice to explore your options.
Stuart D. Robertson is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.
IT’S THE LAW – By Stuart D. Robertson
What would you do if you were the Judge? Judges decide the facts based on evidence put before them and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!…
The Unintended Gift
The parties had been married for 9 years. They had no children. Prior to the relationship, the Husband owned a property that the wife moved into. The parties lived in this property for their entire relationship. The parties both spent a lot of time and money-making improvements to the home that was close to 100 years old. About 6 years into the relationship, the Wife was added to the title to the property so that the Husband and Wife were on title as joint tenants. The Husband says he did this for estate planning purposes, and to take advantage of the homeowner's grant and save on taxes, as the Wife was several years older than the Husband. The Wife thought of the transfer as a gift for all the hard work she had put into maintaining and improving the house.
When the parties separated, the Wife sought an equal division of the house and all their savings. The Husband was prepared to share half the increase in value of the home, but he wanted credit for the value of the house prior to the relationship.
If You Were the Judge, How Would You Decide?
The Husband was trying to claim that the pre-relationship value of his house was “excluded” property under the Family Law Act (B.C.). In this case, the court determined that because the Husband voluntarily transferred the home into the Wife’s name, it was intended as a gift to his wife, regardless of his excuse that it was for estate planning purposes and tax savings. As a result, the entirety of the house was considered family property subject to division, and the Husband could not exclude any portion of it. The court came to these conclusions based on the intentions of the Husband at the time of the transfer. Since the Husband was unable to prove to the court that this transfer was anything other than a gift, the court was left to assume that the transfer was a gift to his Wife.
The above case illustrates how important it is to be clear with your intentions when dealing with property between spouses. Cases such as these are always fact specific, as there are a number of different factors the court can consider. If you face a situation similar to the one above, we recommend that you obtain legal advice to explore your options.
Stuart D. Robertson is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters, and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.
IT’S THE LAW – BY STUART D. ROBERTSON
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
ARE YOU MY “SPOUSE”?
Daphne and Duke started living together about ten years ago. Each had one child from a prior relationship. They all lived together in a home registered in Duke’s name only. Daphne and Duke made a point of keeping their finances separate, each making their own separate major purchases and Duke maintaining any expenses related to the house. Daphne paid Duke a monthly amount for her expenses. They both filed their respective income taxes as “single” each year. They each took rather limited roles in the care of the other’s child. While it is acknowledged that they did care for each other, Duke, on one occasion, went on vacation instead of staying home with Daphne after a hip replacement surgery.
Daphne and Duke did share a bedroom and did have conjugal relations, but never had children together. They would share meals together, go shopping together and go on vacations together. The two did not discuss marriage and it was made clear that Duke was very much against getting married.
After ten years together, the parties finally separated. The question was then raised whether Daphne and Duke fell into the definition of “spouses” for the purposes of the family law legislation, which includes obligations of support and property division.
If You Were the Judge, How Would You Decide?
To be considered “spouses” (what a lot of people refer to as “common law spouses”), there will need to be a determination of whether the two of them were in a marriage-like relationship or not. Despite the parties staying financially separate, there are other factors to consider, including, in particular, the parties’ intention as to whether they were in a relationship and other objective evidence of the parties’ lifestyle and social interactions. Despite it being a rather unconventional relationship, the court found that they were in fact in a “marriage-like” relationship and were considered “spouses” for the purposes of the Family Law Act (BC).
Stuart D. Robertson is a lawyer who practices in Cloverdale with the firm MacMillan Tucker & Mackay at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker & Mackay, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.
IT’S THE LAW – By Stuart D. Robertson
What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
PREMATURE NUPTIALS
Anne and Henry had been married for about 5 years when they mutually decided to end their marriage. They worked together and agreed on how to divide all their assets and debts. Henry agreed to arrange and pay for the divorce. He decided to try and do it himself but had trouble completing the process through the courts, resulting in some delay. Henry eventually submitted the order for divorce with the court and was just waiting for it to be filed. Meanwhile, Anne kept asking him, on an all too regular basis, whether the divorce was complete. After Henry submitted the order to the court, he advised Anne that the divorce was complete in order to stop Anne from nagging him. Henry was unaware that Anne was in a new relationship and that she wanted to get remarried.
In hearing the news that the divorce was complete, Anne and Steve immediately travelled down to Las Vegas and got married by Elvis. About two months later, Henry received the filed divorce order from the court, not realizing that Anne had already remarried. Henry did not bother providing Anne a copy of the divorce order as he had already told her they were divorced. Anne and Steve spent the next 10 years together in wedded bliss. After 10 years though, Steve and Anne had a falling out. It was at that time that Anne and Steve found out that Anne was still married to Henry when they got married. Steve was furious and kicked her out of the house, refusing to give her any support or assets.
If You Were the Judge, How Would You Decide?
At the time of Anne and Steve’s marriage, Anne did not have the capacity to enter into a new marriage as her divorce from Henry was not complete. As a result, her marriage to Steve was not valid and would be declared void by the court. However, despite that marriage being void, Anne and Steve would still be considered spouses as they lived together in a marriage-like relationship for more than 2 years. As a result, Anne’s rights to support and property were effectively the same as if they were legally married. The fact that their marriage was void did not impact those rights.
Stuart D. Robertson is a lawyer who practices in Cloverdale with the firm MacMillan Tucker & Mackay at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker & Mackay, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.
IT’S THE LAW – By Stuart D. Robertson
What would you do if you were the judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by judges. Test your judgment!
THE FALL OF ROME
Julia Caesar and Marco Brutus were happily married with no children. Several years ago, they had purchased a beautiful home in Cloverdale together, which they affectionately referred to as “Rome”. They purchased it for almost no money down and were both registered on title and on the mortgage. One day, Marco grabbed his robe and left Rome suddenly, saying the marriage was over and he was never coming back. Julia was shocked and felt as if she had been stabbed in the back by Marco. When Marco left, the value of Rome was largely the same as when they purchased it.
A couple years went by and housing prices began increasing rapidly. Julia did her best to keep up with all the household expenses, as Marco did not contribute towards anything, to keep Rome from crumbling around her. Eventually, Julia started a court action for divorce and sought to keep Rome for herself. Julia took the position that Marco had abandoned Rome and should not share in the spoils of an improved market, as she had paid for everything since he left. Marco wanted Rome sold and an equal split of the sale proceeds.
If You Were the Judge, How Would You Decide?
In our scenario, the Family Law Act creates a presumption that Rome is family property and should be equally split based on its current value (i.e. the date of settlement or trial) and not the value as of the date of separation. As a result, a judge would likely equally split Rome between Marco and Julia, subject to a potential accounting for expenses paid post separation. For example, a judge could require Marco to compensate Julia for half of certain expenses for the home since separation, such as half the principal payments towards the mortgage or property taxes. However, to further complicate things, the judge could also offset Julia’s expenses with an award for occupational rent. In other words, Julia’s expenses could be reduced as if she should have been paying “rent” to Marco since she had the sole use and occupancy of Rome after separation.
Situations such as these can be very difficult and are always fact specific. It is recommended that you get legal advice if you face a situation similar to the above.
Stuart D. Robertson is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.
IT’S THE LAW – By Stuart D. Robertson
What would you do if you were the judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by judges. Test your judgment!
Woulda Coulda Shoulda got a Prenup
Magnum and Higgins started dating and fell madly in love. Higgins owned a beautiful home in Cloverdale that she had had for many years. Despite being advised by her friends and family to get a Prenuptial Agreement, Higgins and Magnum got married. Magnum proceeded to move into Higgins’ home. Higgins continued to pay for everything for the home, including the ongoing mortgage payments and property taxes.
As time went by, the housing market continued to increase. Over the course of the next 6 years, the value of the house almost doubled. Meanwhile, Higgins’s great uncle, Robin Masters, passed away and left her $400,000. With her inheritance, Higgins was able to pay off the mortgage on the home, with enough left over to take the two of them on an expensive three-week holiday in Hawaii.
Shortly after the holiday, Higgins and Magnum’s relationship came to an end. Higgins asked Magnum to leave the home, but Magnum refused to leave until he was compensated for his interest in the home, which he saw as half the increase in value. Higgins refused, saying that Magnum was not entitled to anything. She had paid for everything for the home. Higgins went so far as to demand money from Magnum to repay her for the holiday they took together. Following their separation, they continued to live together for several months with neither party willing to budge. In the meantime, the value of the property decreased.
If You Were The Judge, How Would You Decide?
Under the Family Law Act, Magnum is presumptively entitled to half the increase in the value of the home over the course of their relationship, despite not contributing to it financially. The value of the home is determined at the time of the final settlement, not the date of separation, so the decrease in market value helped Higgins out in this scenario.
The Family Law Act has provisions that allow certain types of property to be excluded from a division of family property, which includes inheritance. So long as the excluded property can be traced to a particular asset, the inheritance can be excluded from property division between the parties. In this case, since only some of the inheritance was spent on the home, only that portion that was used to pay off the mortgage can be excluded. As such, Magnum is likely entitled to half of the increase in value of the home over the course of the relationship to the date of final settlement, less a credit for the mortgage balance that Higgins paid off using her inheritance.
As for the three-week holiday to Hawaii, Higgins gets no credit for that. But at least she took many pictures.
Stuart D. Robertson is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.
IT’S THE LAW – By Stuart D. Robertson
What would you do if you were the judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by judges. Test your judgment!
Conscious Un-Coupling and Re-Coupling and Support
Will and Grace were married for 25 years and had 2 children together. Grace gave up her job as an administrative assistant to stay at home with the children while they were young. Will continued to work at his job at ABC Incorporated throughout the marriage, where he worked his way up the corporate ladder to become Vice-President.
The parties separated. Grace had already gone back to work and was able to find work at the same company she had worked at previously, despite the 12 years off. As part of their divorce order, Will agreed to pay spousal support to Grace. However, before the parties were finally divorced, both Will and Grace had entered into new relationships. Grace, in particular, had fallen in love with Jack, the Vice-President of ABC Inc.’s main competitor XYZ Inc. Grace and Jack had been together for about a year but were not yet living together at the time of the divorce. Will was aware of this arrangement.
Fast forward 3 years later. While Will’s new relationship did not last, Grace’s relationship persevered. Grace and Jack were now married. Shortly after the marriage, Will brought a court application to cancel the spousal support he was paying Grace.
If You Were the Judge, How Would You Decide?
In order for Will to be successful in varying the support order, he needs to establish that there was a material change in circumstances from the date of the divorce order. When the divorce order was made, Will was aware that Grace was in a new committed relationship with someone of similar financial means to him. As a result, the court found that there had not been a material change in circumstance despite Grace getting remarried. The court found that Grace’s re-partnering was a reasonably foreseeable event that was known at the time of the original order and therefore did not warrant a variation of the existing order.
Cases such as the above are often very complex. If you have a situation similar to the above, we recommend you obtain legal advice to address your particular factual scenario.
Stuart D. Robertson is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.
IT’S THE LAW – By Stuart D. Robertson
What would you do if you were the judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by judges. Test your judgment!
That’s All I Can Stands, ‘Cause I Can’t Stands No More
Popeye and Olive were together for several years before they separated. They had one child together named Sweet Pea. After a lengthy court battle, it was decided that Sweet Pea would live with Olive full time. At the time, Popeye had a great job as a spinach salesman. Popeye began paying support to Olive in cash. This continued for a couple years until Popeye got sick of spinach and quit his job. Instead of trying to find a job right away, he decided to do some travelling. His travels quickly depleted his savings and he started going into debt trying to keep up with his child support payments. Eventually, he started missing payments.
Olive enrolled with the Family Maintenance Enforcement Program to collect the money owed to her for child support. She told them that Popeye was behind several months in child support payments. It was around that time that Popeye started looking for a job. Popeye disputed that he was as far behind in his payments as Olive alleged. Despite not having a written record of payments or receipts from Olive, Popeye stated he recalled making all the payments each month until just recently. Popeye applied to the court to reduce the amount of child support he was required to pay and to cancel the arrears that had accumulated. By the time the matter went to court, Popeye decided to join the Navy. While it did not pay as well as his previous employment, there were great opportunities for advancement and future increases in income.
If You Were the Judge, How Would You Decide?
The court agreed with Olive’s calculation of the amount of child support payments owed to her by Popeye. The onus was on Popeye to convince the court, on a balance of probabilities (more than 50%), that he had made the payments. Without cancelled cheques or receipts from Olive, there was insufficient evidence to prove that he had paid.
As for Popeye’s application to cancel the arrears, the court will only reduce or cancel arrears if it is grossly unfair not to do so. This was largely based on Popeye’s ability to pay, now and into the future. Given that Popeye had voluntarily quit his previous employment, was currently employed and had a promising financial outlook, the court refused to cancel the arrears. At the very least, however, the court was prepared to reduce his future child support payments based on his current reduced level of income.
These sorts of situations are case-specific and depend on numerous factors.
Stuart D. Robertson is a lawyer who practices in Cloverdale with the firm MacMillan Tucker & Mackay at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker & Mackay, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.
IT’S THE LAW – BY STUART D. ROBERTSON
What would you do if you were the Judge? Judges decide the facts based on evidence put before them and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!…
ARE YOU MY “SPOUSE”?
Daphne and Duke started living together about ten years ago. Each had one child from a prior relationship. They all lived together in a home registered in Duke’s name only, known as Hasting Manor. Daphne and Duke were sure to keep their finances separate, each making their own separate major purchases and Duke maintaining any expenses related to the manor. Daphne paid Duke a monthly amount for her expenses. They both filed their respective income taxes as “single” each year. They each took rather limited roles in the care of the other’s child. While it is acknowledged that they did care for each other, Duke, on one occasion, went on vacation instead of staying home with Daphne after a hip replacement surgery.
Daphne and Duke did share a bedroom and did have conjugal relations, but never had children together. They would share meals together, go shopping together and go on vacations together. The two did not discuss marriage, and it was made clear that Duke was very much against getting married.
After ten years together, the parties finally separated. The question was then raised whether Daphne and Duke fall into the definition of “spouses” for the purposes of the family law legislation, which includes obligations of support and property division.
If you were the Judge, how would you decide?
To be considered “spouses” (what a lot of people refer to as “common law spouses”), there will need to be a determination of whether they were in a marriage-like relationship or not. Despite the parties staying financially separate, there are other factors to consider, including, in particular, the parties’ intention as to whether they were in a relationship and other objective evidence of the parties’ lifestyle and social interactions. Despite it being a rather unconventional relationship, the court found that they were in fact in a “marriage-like” relationship and were considered “spouses” for the purposes of the Family Law Act (BC).
Stuart D. Robertson is a lawyer who practices in Cloverdale with the firm MacMillan Tucker & Mackay at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker & Mackay, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.