Presumption of Advancement in British Columbia Estate and Family Law

The Presumption of Advancement in British Columbia has sparked heated debates among family lawyers and estate litigators. This common law doctrine assumes that when one spouse transfers property to the other, it’s considered a gift and becomes the sole property of the recipient spouse. But what happens in the event of death or relationship breakdown? Can the transfer be undone? This has been a lingering question, with various interpretations and applications of the doctrine.

What is the Presumption of Advancement?

The Presumption of Advancement is a common law doctrine that states that when property is transferred from one spouse to another, it is considered a gift and becomes the sole property of the recipient spouse.

This doctrine has been in place for many years and has been applied in cases of death or relationship breakdown. The doctrine operates on the assumption that the transfer was made with the intention of making the recipient spouse the sole owner of the property. However, in recent years, the application of this doctrine has been unclear in cases of relationship breakdown, leading to the clarification provided by the court in the P.G. v. D.G. 2015 BCSC 1451 case.

A recent court case, P.G. v. D.G. 2015 BCSC 1451, has clarified the effect of the presumption of advancement in British Columbia. The court ruled that the Family Law Act overrides the presumption of advancement and excludes property falling under s. 85(1) from the pool of family property to be divided upon relationship breakdown. This excluded property includes pre-owned property, inheritances, third-party gifts, and damages awards. The court has robustly applied the tracing provisions of the Family Law Act to keep the separated parties with what is rightfully theirs.

The court limited the ruling to cases of relationship breakdown and stated that the presumption of advancement still applies in cases where the spousal relationship continues until death. In these cases, any property transferred during the relationship is presumed to be a gift and becomes the sole property of the recipient spouse, with no claim from the donor’s estate.

However, in cases of relationship breakdown, the court has limited discretion to correct any injustice, as the FLA requires a stricter standard of “significantly unfair.” The court’s interpretation of the different application of the presumption of advancement in these cases is a workable reconciliation of statutory and common law, reflecting the modern reality of marital finances while respecting the well-established concept of the presumption of advancement in property law.

The History of the Presumption of Advancement

The principle of the presumption of advancement has a long history in the BC justice system. It is believed to have originated from common law, where it was first introduced as a way to encourage parties to take responsibility for advancing their cases. Over time, the principle has been incorporated into various legislation and case law, and has become an established part of the BC justice system.

How the Presumption of Advancement Operates in the BC Justice System

The presumption of advancement operates in a number of ways in the BC justice system. Firstly, it provides a framework for the court to make decisions about the progression of a case. Secondly, it encourages parties to take responsibility for advancing their cases, and to provide evidence and arguments in a timely and effective manner. Thirdly, it helps to ensure that cases are dealt with efficiently, by reducing the need for parties to constantly seek direction or clarification from the court.

The Benefits of the Presumption of Advancement

There are a number of benefits to the principle of the presumption of advancement. Firstly, it helps to ensure that cases are dealt with efficiently, by reducing the need for parties to constantly seek direction or clarification from the court. Secondly, it encourages parties to take responsibility for advancing their cases, and to provide evidence and arguments in a timely and effective manner. Thirdly, it provides a framework for the court to make decisions about the progression of a case, helping to ensure that justice is served in a fair and impartial manner.

Potential Challenges with the Presumption of Advancement

While the principle of the presumption of advancement has many benefits, there are also potential challenges that need to be considered. For example, the principle may put pressure on parties to advance their cases, even if they do not have the resources or evidence to do so. Additionally, the principle may not always provide an accurate reflection of the reality of a case, particularly if one party has significantly more resources than the other.

Conclusion

The presumption of advancement is an important principle in the BC justice system. It helps to ensure that cases are dealt with efficiently, and encourages parties to take responsibility for advancing their cases. However, it is important to consider the potential challenges associated with the principle, and to ensure that it operates in a fair and impartial manner.