In Baryla v. Baryla 2019 BCCA 22, the Court considered whether the trial judge had erred by failing to find that a half-interest in a home owned by the husband was excluded property, as the respondent husband had received the half-interest from his mother upon her death as a joint survivor of the joint tenancy property.
The parties ended their 40-year marriage in 2014 by signing a Letter of Intent Agreement dividing their assets equally between them. The Agreement provided that Mr. Baryla would transfer the subject home to his wife, and he did so. However, not all of the terms of the Agreement were implemented, as the wife brought a family law action seeking spousal support and an equal division of property.
The trial judge determined that the respondent wife had made a financial contribution to the home, which caused the appellate court to examine whether the gift of the right of survivorship was made to the husband and his wife, or just the husband, noting that this analysis was not done by the trial judge.
The appeal panel also pondered whether the husband’s transfer of the property to his wife pursuant to the Agreement extinguished his excluded property claim.
The appellant husband alleged that the trial judge had misapprehended the evidence by erroneously finding that the parties had contributed approximately $170,000 to the purchase of the home, while the true facts were that the sum of $170,000 came from the sale of his mother’s former home.
The trial judge relied on VJF v. SKW 2016 BCCA 186 to find that the husband’s voluntary transfer of the property to his wife eliminated his excluded property claim.
The Court of Appeal disagreed saying that the presumption of advancement had no application because the parties were separated at the time of the transfer and the transfer was not a gift but a fulfillment of a contract.
The husband also challenged the trial judge’s alternative holding that it would be significantly unfair not to divide the property equally because the purchase price of the home came primarily from the parties, relying again on the misunderstanding of the relevant evidence.
The appeal panel acknowledged that they could not consider this argument until the parties’ actual contributions to the purchase price was ascertained.
The Appeal Court allowed the appeal and ordered a new trial.
Lawdiva aka Georgialee Lang