Maroukis v. Maroukis et al., (1984) 54 N.R. 268 (SCC)

• Judge: Dickson, C.J.C., Ritchie, Beetz, Estey, McIntyre, Chouinard and Lamer, JJ.
• Court: Supreme Court (Canada)
• Case Date: September 17, 1984
• Jurisdiction: Canada (Federal)
• Citations: (1984), 54 N.R. 268 (SCC);41 RFL (2d) 113;[1984] 2 SCR 137;27 ACWS (2d) 306;1984 CanLII 76 (SCC);54 NR 268;[1984] SCJ No 35 (QL);5 OAC 182;34 RPR 228;12 DLR (4th) 321

Maroukis v. Maroukis (1984), 54 N.R. 268 (SCC)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Maroukis v. Maroukis et al.

Indexed As: Maroukis v. Maroukis et al.

Supreme Court of Canada

Dickson, C.J.C., Ritchie, Beetz, Estey, McIntyre, Chouinard and Lamer, JJ.

September 17, 1984.

Summary:

A husband and wife were married in 1965 and acquired a matrimonial home in joint tenancy in 1975. They separated in October 1978 and in November the wife applied for a division of family assets under section 4 of the Family Law Reform Act, R.S.O. 1980, c. 152. In July 1979 a bank started actions against the husband to collect unpaid loans. Default judgments were signed by the bank in July and executions were filed with the sheriff. In October 1979 the Ontario County Court ordered that the matrimonial home vest in the wife. On the wife's further motion the court ordered in January 1980 that the matrimonial home be vested in the wife as of October 1978, the date of separation, in order to clear the property of the claims of the bank and other execution creditors who had filed executions before the October 1979 order. The execution creditors appealed.

The Ontario Court of Appeal in a judgment reported 33 O.R.(2d) 661; 24 R.F.L.(2d) 113, allowed the appeal. The wife appealed.

The Supreme Court of Canada dismissed the appeal and held that the matrimonial home vested in the wife only upon the making of the order in October 1979, thereby making the home subject to the claims of the execution creditors.

Execution - Topic 747

Exemptions - Jointly owned property - The Supreme Court of Canada held that jointly owned property was not exempt from execution by execution creditors of one of the joint owners - See paragraphs 8 to 10.

Family Law - Topic 654

Husband and wife - Marital property - Dispositions and encumbrances - Encumbrance - What constitutes - The Supreme Court of Canada held that a writ of execution against a husband did not constitute an encumbrance of the marital property within the meaning of section 42(1) of the Family Law Reform Act, R.S.O. 1980, c. 152 - See paragraph 11.

Family Law - Topic 880.15

Husband and wife - Marital property - Distribution orders - When property vests in spouse to whom it is allocated - The Supreme Court of Canada held that under section 4 of the Family Law Reform Act, R.S.O. 1980, c. 152, marital property vests in the spouse to whom it is allocated only upon the making of the order and that there was no jurisdiction to order that the property vest before that in order to clear the property of the claims of execution creditors who have filed executions before the order - See paragraphs 1 to 7.

Cases Noticed:

Re Craig, [1929] 1 D.L.R. 142 (O.C.A.), appld. [para. 9].

Toronto Hospital for Consumption v. Toronto (1930), 38 O.W.N. 196 (C.A.), appld. [para. 9].

Power v. Grace, [1932] 2 D.L.R. 793 (O.C.A.), appld. [para. 9].

Re Young (1968), 70 D.L.R.(2d) 594 (B.C.C.A.), appld. [para. 9].

Tully, Tully and Klotz, Re, [1953] O.W.N. 661, refd to. [para. 9].

Sirois v. Breton (1967), 62 D.L.R.(2d) 366 (O.C.C.), appld. [para. 10].

Re McDonald (1969), 71 W.W.R.(N.S.) 444 (B.C.S.C.), appld. [para. 10].

Worms v. Worms (1981), 18 R.P.R. 35 (O.D.C.), appld. [para. 10].

Statutes Noticed:

Execution Act, R.S.O. 1980, c. 146, sect. 9 [para. 9].

Family Law Reform Act, R.S.O. 1980, c. 152, sect. 4 [para. 7]; sect. 42(1), sect. 44(d) [para. 11].

Counsel:

C.E. Fleck, Q.C., and Ian Bruce, for the appellant;

Brian Donovan, for the respondent.

This case was heard on May 15, 1984, at Ottawa, Ontario, before Dickson, C. J.C., Ritchie, Beetz, Estey, McIntyre, Chouinard and Lamer, JJ., of the Supreme Court of Canada.

On September 17, 1984, McIntyre, J., delivered the following judgment for the Supreme Court of Canada: