Many people know that the 2013 FLA has a 50/50 division of family assets as the starting point then one can argue whether half would be fair. But a Supreme Court decision this year highlighted a mistake many make. The first argument is not about the size of the asset share but whether the asset is actually a family asset which can be divided between the spouses. If neither spouse owns the asset in question then the Court must be convinced that one of the spouses has a valid claim to at least part of the asset owned by the third party. The case of Gill v Gill, 2021 BCSC 270, reviewed the Trust claims often used to assert an interest in an asset owned by someone else. In today's real estate market, it is common that young couples will live in the home of a spouse's parent then when the parties separate a claim is made that some of the the home value is a family asset. The Court made it clear that the claimant has the burden of proof. The Gill decision confirmed again that evidence, not wishes nor understandings nor alleged verbal assurances, is required to prove the material facts. Without evidence, such as the three certainties especially the intent to create a trust or unjust enrichment without juristic reason to qualify as a constructive trust, the trust claim will fail. The message is that you must not assume facts. If you think that an asset owned by a third party belongs to you or your spouse then you need confirmation in writing.
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