CHAPTER 26 Family Property 568

• Date: 07 April 2025

568

CHA PTER 26

FAMILY PROPERTY

A. INTRODUCTION

Most legal systems have laws that address the division of the property

of spouses on the dissolution of their marriage. For example, after a

lengthy marriage, most of the property — all immovable property and all

signif‌icant movable property — might be owned by one of the spouses.

When the marriage ends, it is unfair for that person to retain all of that

property. Accordingly, some division of the spouses’ property is neces-

sary. If they cannot resolve the division themselves, court proceedings

will be required.

Similar issues can arise on the dissolution of a common law relation-

ship. Absent specif‌ic statutory provisions,1 a claim to property division

in this context is treated by the common law as an unjust enrichment

claim.2 Such claims are examined in Chapter 15.3

While it is common to refer to this process as a division of family

property, it is unusual in practice for the court to make an order that

specif‌ic items of property are owned, going forward, by one spouse or

the other. The property is not divided in that way. The typical order

simply requires the spouse owning more of the family property to pay

the amount of money to the other spouse required to equalize or share

the property’s value between them.

1 See, for example, The Family Property Act, CCSM c F25, s 2.1.

2 See, for example, Kerr v Baranow, 2011 SCC 10; Postans v Davidson, 2021 ABQB

30 at para 9.

3 See, for example, Christopher v Zimmerman (2000), 80 BCLR (3d) 229 (CA);

Knowles v Lindstrom, 2014 ONCA 116.