Chapter 13: Matrimonial Property Rights

• Date: 14 April 2025

598

 

Matrimonial Property Rights

A. PROVINCIAL AND TERRITORIAL LEGISLATIVE DIVERSITY

Over forty years ago, the Supreme Court of Canada in Murdoch v Murdoch1 concluded that

a wife who had worked alongside her husband in the elds was not entitled to any inter-

est in the ranch that had been originally purchased with his money. Her homemaking role

and hard physical labour on the farm counted for nothing. Several years later, the Supreme

Court of Canada saw the error of its ways and invoked the doctrine of unjust enrichment to

enable wives2 and unmarried cohabitants3 to share in property acquired or preserved by their

partners during cohabitation. In the meantime, provincial legislatures introduced statutory

reforms to ameliorate the harshness of the Murdoch v Murdoch decision so far as married

couples are concerned.

Every province and territory in Canada has enacted legislation to establish property -shar-

ing rights between spouses on marriage breakdown or divorce and, in some provinces,

on death.4

 (),  RFL  (SCC).

 Rathwell v Rathwell (),  RFL (d)  (SCC).

 Pettkus v Becker, []  SCR ,  RFL (d) ; Sorochan v Sorochan, []  SCR . And see Chapter,

Section E.

 See Matrimonial Property Act, RSA , c M-; Family Law Act, SBC , c , Part; Marital Property

Act, CCSM c M; Marital Property Act, SNB , c M-.; Family Law Act, RSNL , c F-, Part I

(Matrimonial Home), Part II (Matrimonial Assets), Part IV (Domestic Contracts); Matrimonial Prop erty

Act, RSNS , c ; Family Law Act, SNWT , c , Part I (Domestic Contracts), Part III (Family

Property), PartIV (Family Home); Family Law Act, RSO , c F., Part I (Family Property), Part II

(Matrimonial Home), Part IV (Domestic Contracts); Family Law Act, SPEI , c , Part I (Family Prop-

erty), Part II (Family Home), Part IV (Domestic Contracts); Civil Code of Québec, SQ , c , Book ;

Matrimonial Property Act, 1997, SS , c M-.; Family Property and Support Act, RSY , c , Part I

(Family Assets), Part  (Family Home), Part , ss  and – (Domestic Contracts). Many of the afore-

mentioned statutes have been amended from time to time. As to First Nations communities choosing to

create their own matrimonial real property laws, see Family Homes on Reserves and Matrimonial Interests

or Rights Act, SC , c ; McMurter v McMurter,  ONSC .

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Matrimonial Proper ty Rights 599

ree fundamental questions require consideration in any attempt to divide property

between spouses on the termination of their relationship. ey are as follows:

1) What kind of property falls subject to division?

2) How is the property to be valued?

3) How will the sharing of property be achieved?

In some provinces and territories, a wide judicial discretion exists , and distinctions are

drawn between “family assets” that both spouses use and “business” or “commercial” assets

that are associated with only one of the spouses. In others, no such distinctions exist. In most

provinces and territories, the courts are empowered to divide specic asse ts. In Ontario, it

is the value of property, as distinct from the property itself, that is shared; all assets must be

valued, and each spouse is presumptively entitled to an equal share in the value of the assets

acquired by either or both of them.

Provincial and territorial matrimonial property statutes usually exclude premarital

assets from division and also certain postmarital a ssets, such as third-party gifts or inher it-

ances and damages or monetary compensation received by a spouse from a third party as a

result of personal injuries.

Statutory property-sharing regimes are not dependent on which spouse owned or

acquired the assets. Prior to marriage breakdown, however, the control and management

of an asset is legally vested in the owner. Provincial and territorial statutes, nevertheless,

prohibit a title-holding spouse from disposing of or encumbering the matrimonial home

without the consent of his or her spouse.

Because the relevant provincial and territorial statutes dier markedly in content and

approach, it is impossible to provide a comprehensive analysis of the diverse provincial

matrimonial property regimes in the following pages. e authors will consequently focus

on the Ontario statute, which represents the most comprehensive provincial legislation on

matrimonial property rights in Canada.

1) Introduction

In 1978, the province of Ontario enacted the Family Law Reform Act5 to ameliorate the hard-

ship and injustice arising under the doctrine of separation of property, whereby each spouse

retained his or her own property upon the breakdown or dissolution of marriage. Se ction 4

of the Family Law Reform Act, 1978 empowered a court to order a division of “family assets”

and, in exceptional circumstances, a division of non-family assets upon marriage breakdown,

regardless of which spouse was the owner of the assets. G enerally speaking, a non-owning

spouse would be granted an equal share of the family assets, which include d the matrimonial

home and other assets ordinarily used or enjoyed by the family, but no interest in business

assets would be granted to the non-owning spouse.

As of 1 March 1986, Part I of the Family Law Act6 eliminated the former distinction

between “family assets” and “non-family assets” by providing for an equali zation of the value

 SO , c .

 RSO , c F..

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600   

of all assets accumulated by either spouse during the marriage in the event of marriage

breakdown or death.

2) Objectives of Family Law Act

In general terms, the fundamental objective of Part I of the Family Law Act is to ensure that,

on marriage breakdown or death, each spouse will receive a fair share, which will usually be

an equal share, of the value of assets accumulated during the course of matrimonial cohabit-

ation. us, section 5(7) of the Family Law Act provides as follows:

(7) e purpose of this section is to recognize that child care, household management and

nancial provision are the joint responsibilities of the spouses and that inherent in the mari-

tal relationship there is equal contribution, whether nancial or otherwise, by the spouses

to the assumption of these responsibilities, entitling each spouse to the equalization of the

net family properties, subject only to the equitable considerations set out in subsection (6).

is provision does not empower a court to deviate from the norm of equal division in the

absence of circumstances that justify a nding of unconscionability within the meaning of

section 5(6) of the Family Law Act.7 As HughesJ, of the Ontario Superior Court of Justice,

observed in Janjua v Khan, “[i]t is quite common for spouses to make unequal contributions

of money and assets to their marriage. It is quite uncommon, however, for it to justify an

unequal division of matrimonial property on the breakdown of their marriage.”8

3) Definition of “Spouse”

For the purpose of Part I of the Family Law Act, section 1(1) specically denes “spouse” as

meaning a man and woman who are married to each other or who have entered into a void

or voidable marriage, provided that in either of the latter circumstances, the person asserting

a right under the Act acted in good faith.9 “Good faith” within the meaning of section 1(1) of

the Act signies an intention to comply with the Marriage Act.10 Same-sex relationships and

“common law relationships” fall outside the ambit of Part I of the Family Law Act.

Pursuant to section 7(1) of the Ontario Family Law Act, a former spouse may seek equal-

ization of the spousal net family properties under section 5 of the Act. After a valid foreign

divorce has been granted, the Ontario Superior Court of Justice has no jurisdiction to hear

and determine an application for spousal support under the Divorce Act or under the Family

Law Act, but the foreign divorce does not preclude the Ontario Superior Court of Justice

from adjudicating an application for the equalization of the spousal net family properties

under the Family Law Act.11

 Brett v Brett (),  RFL (th)  (Ont CA); Fielding v Fielding,  ONCA . See, generally,

Section A()(a), below in this chapter.

  ONSC  at para .

 See Best v Best,  NLTD(F) ; Guptill v Wilfred,  NSSC ; Lalonde v Agha,  ONSC .

 Debora v Debora, [] OJ No  (CA); Janjua v Khan,  ONSC .

 Okmyansky v Okmyansky,  ONCA .

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