Canada: Once A Gift, Always A Gift?

In a decision handed down this week, the Court of Appeal attempted to clarify a question that has frustrated family law practitioners and clients alike: what happens to a spouse's excluded property when it is transferred into joint names? Is the property a gift to the other spouse? Or does the spouse get to keep the value of their exclusion?

Family property and excluded property under the Family Law Act

In 2013, the Family Law Act created the concepts of "family property" and "excluded property" in British Columbia. Section 84 defines family property as all real and personal property owned by a spouse, including a beneficial interest in property, and derived from such property. On separation, spouses will share family property equally, unless it would be "significantly unfair" based on certain factors set out in s. 95.

What happens when excluded property is transferred to the other spouse?

Although the Family Law Act was intended to clarify what is (or is not) divisible between spouses on separation, the question of what happens to excluded property when transferred into joint tenancy or into the name of the other spouse has produced extensive litigation with varied outcomes. In Venables, the Court has provided a framework for addressing this situation.

Venables v. Venables

Venables v. Venables, 2019 BCCA 281, involved two classes of assets that Mr. Venables said were his excluded property, and so were not subject to division on separation:

  1. a house that he owned prior to the relationship; and
  2. an inheritance that he received during the relationship.

However, Ms. Venables said that the assets were family property because of how Mr. Venables had dealt with the property during the relationship:

  1. Mr. Venables had transferred the house into the parties' joint names to simplify estate administration and to derive a tax benefit. At the time, the couple did not discuss what would happen to the property on marriage breakdown; and
  2. Mr. Venables had placed over half of his inheritance money into a joint term deposit.

The trial judge found that Mr. Venables' actions had transformed the excluded property into family property. Having done so, however, the judge found that it would have been significantly unfair to divide family property equally. The judge divided family property in Mr. Venables' favour in such a way as to return to him much of the value of the formerly excluded property. This was due, in part, to the origins of the family property as Mr. Venables' excluded property.

Ms. Venables appealed.

Once a Gift, Always a Gift?

Ms. Venables argued, in part, that the judge had erred in dividing family property unequally. The Court summarized Ms. Venables' main argument as follows:

[75] The appellant submits that once the judge concluded that the Home and Inheritance lost their excluded status and became family property, it was inconsistent for him to take their origins into account and divide them unequally, in effect treating them as remaining "quasi excluded".

The transfer of property to the other spouse's name, solely or jointly, raised two questions for the Court:

  1. Does "excluded property" become "family property"?
  2. If so, then can the origins of the property (that previously made it excluded property) be considered a factor that might make it "significantly unfair" to divide family property equally, thereby justifying reapportionment of that property?

On the first question, and despite the lack of consistency in the case law, the Court held that the matter had been determined in its earlier decision in V.J.F. v. S.K.W., 2016 BCCA 186. The intention of the spouse transferring ownership is key in determining whether the property remains excluded property or becomes family property — if the transferring spouse intended a gift and there is no agreement that it is to remain excluded, then it will become family property.

Here, the judge found that Mr. Venables had intended a gift. Neither party disputed this determination on appeal.

Once a Gift, Not Always a Gift

On the second question, the Court rejected the notion of "once a gift, always a gift". When deciding whether to divide family property unequally, the Family Law Act allows the Court to consider whether "any other factor" may lead to significant unfairness. As such, the Court may consider the origins of family property as formerly-excluded property contributed by one spouse. The importance of this factor will depend on the circumstances.

Here, the judge had not erred in finding that an equal division of property would have been significantly unfair based on the following considerations:

  1. Mr. Venables had brought significant assets into the relationship that, had he not put those assets into joint names, would have been his excluded property and his alone. In contrast, Ms. Venables brought no material assets into the relationship.
  2. Mr. Venables contributed his formerly-excluded assets to the family property only a few years before separation.
  3. Mr. Venables had contributed his superior earnings and his work on renovations to the home.
  4. This was a medium length relationship where the parties had come together mid-life and did not raise children together.
  5. Ms. Venables' contributions and sacrifices were recognized, including in the award of spousal support.

In light of Mr. Venables' disproportionate contributions of formerly-excluded property, it would have been significantly unfair to allow Ms. Venables to financially benefit significantly more from the relationship than Mr. Venables. The Court upheld the judge's order, which was crafted so that each would be roughly equally better off financially as compared to when they entered the relationship.

A Way Forward

It is often the case that one spouse will transfer property into joint names, or will contribute otherwise excluded funds to family property. Due to the uncertainty that has emerged in the case law, counsel have been armed with numerous arguments about how to address this common situation, but few answers for anxious clients. Venables provides a framework for addressing such transfers:

  1. Did the transferring spouse intend a gift at the time of the transfer?
  2. If so, would it nonetheless be significantly unfair to divide family property equally, taking into account the transferring spouse's contribution of excluded property into the family property category?

Unanswered Questions

That said, Venables left some issues to be considered another day. For example, does the presumption of advancement continue to apply under the Family Law Act?1 Related to this issue, is it appropriate to look for evidence of the transferring spouse's intention where the transfer took place years (or decades) before the Family Law Act came into force? In those cases, spouses could not have known that they were potentially "gifting" assets to their spouse, as the concepts of "family property" and "excluded property" were not known to BC law.2 For answers to these issues, counsel and clients alike must await further clarification from the Courts or the Legislature.

For assistance with your family law matter, please contact a representative of Clark Wilson LLP's Family Law Practice Group.


1 The presumption of advancement is an evidentiary presumption where, in certain circumstances, a gratuitous transfer of property is presumed to be a gift: Namdarpour v. Vahman, 2019 BCCA 153. While V.J.F. held that this presumption continues to apply, other cases, including H.C.F. v. D.T.F., 2017 BCSC 1226, have concluded that it cannot coexist with the Family Law Act.

2 McManus v. McManus, 2019 BCSC 123.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions