Dividing Property and Allocating Debt Under British Columbia's Family Law Act

Scheme of Part 5 The differences in the approach to the division of property taken by the Family Relations Act and the Family Law Act are profound; no assumptions should be made that the terms of the new act bear any relation to those of the old without consulting the text of the legislation. [...] The excluded character of property can be traced into property bought with excluded property; the amount of the exclusion from the new property is the equity in the original property at the later of the purchase of the original property or the commencement of the spousal relationship. [...] The mortgage was subsequently retired by a number of payments made by the respondent’s parents, raising the question of whether the payments were made as a loan, as a gift or as an advance on the respondent’s inheritance, and the applicability of the presumption of advancement to the division of property under Part 5. Identifying family property. [...] However, the primary significance of this case lies in the court’s analysis of application of the presumption of advancement to the division of property under the Family Law Act; contrary to the conclusion reached in Cabezas, Butler J. concluded that Part 5 of the act operates as a complete code excluding the application of other legal principles. [...] It is only “when considering whether it would be unfair or inequitable to allow the exemption in whole or in part, is the court to have regard for such matters as the depreciating nature of the property.” The effect of this legislative scheme is that the default position for such property is that its value as of the date of commencement of the relationship is excluded from division subject to the