Matrimonial Property Rights

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 703-770

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Matrimonial Property Rights

A. PROVINCIAL AND TER RITORIAL LEGISLATIVE

DIVERSITY

Over forty years a go, the Supreme Court of Canada i n Murdoch v Murdoch

concluded that a wife who had worked a longside her husband in the eld s

was not entitled to any interest in the ranch that had been or iginal ly pur-

chased with h is money. Her homemaking role and hard physic al labour on

the farm counted for nothi ng. Several years later, the Supreme Court of Can-

ada saw the error of its ways and i nvoked the doctri ne of unjust enrichment

to enable wives and un married coha bitants to share in proper ty acquired

or preserved by their pa rtners duri ng cohabitation. In the meanti me, prov-

incial legi slatures introduced statutory reforms to amel iorate the harshness

of the Murdoch v Murdoch decision so far as mar ried couples are concerned.

Every province and ter ritory in Canada has enac ted legislation to esta b-

lish property- sharing r ights between spouses on marria ge breakdown or di-

vorce and, in some provinces, on death.

 (),  RFL  (SCC).

 Rathwell v Rathwell (),  RFL (d)  (SCC).

 Pettkus v Becker, []  SCR ,  R FL (d) ; Sorochan v Sorochan, []  SCR .

And see Chapt er , 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-.; Fam ily Law

Act, RSNL , c F- , Part I (Matrimon ial Home), Part II (Matr imonial Asse ts), Part

IV (Domestic C ontracts); Matrimonial Property Act, RSNS  , c ; Family Law Act,

SNWT , c , Par t I (Domestic Contract s), Part III (Family Pro perty), Part IV (Fam -

ily Home); Family Law Ac t, RSO , c F., Part I (Famil y Property), Part II ( Matrimo-

nial Home), Part I V (Domestic Contract s); Family Law Act, SPEI , c  , Part I (Family

Property), Par t II (Family Home), Part I V (Domestic Contract s), Civil Code of Québec,

  

ree fundamenta l questions require consider ation in any attempt to

divide propert y between spouses on t he termination of the ir relationship.

ey are as follows:

) What kind of proper ty falls subject to div ision?

) How is the property to be va lued?

) How will the sha ring of property be achieved?

In some provinces and terr itories, a wide judici al discret ion exists and

distinctions are drawn betwe en “fami ly assets” that both spouses use and

“business” or “commercia l” assets t hat are associated w ith only one of the

spouses. In others, no such distinctions ex ist. In most provinces a nd ter-

ritories, the courts are empowered to divide spec ic assets. In Onta rio, it is

the value of property, as di stinct from the property itself, th at is shared; al l

assets must be valued a nd each spouse is presumptively entitled to an equa l

share in the value of t he assets acquired by either or both of them.

Provincia l and territorial matr imonial property stat utes usually exclude

premarital a ssets from division and also cert ain postmar ital assets, such as

third-par ty gift s or inheritances a nd damages or monetar y compensation

received by a spouse from a th ird party as a result of personal inju ries.

Statutory propert y-sharing regimes are not dependent on which s pouse

owned or acquired the as sets. Prior to mar riage breakdow n, however, the

control and management of an asset is le gally vested in the owner. Provi ncial

and territoria l statutes, nevert heless, prohibit a title-holdin g spouse from

disposing of or encumbering the matr imonial home without the consent of

his or her spous e.

Because the releva nt provincial a nd territoria l statutes dier ma rkedly

in content and approach, it is impossible to provide a comprehensive a naly-

sis of the diverse provi ncial matr imonial proper ty regimes in t he following

pages. e authors will conseque ntly focus on the Ontar io statute, which

represents the most comprehensive provinci al legislat ion on matrimonia l

property rig hts in Canada.

SQ , c , Book  ; Matrimonial Property Act, , SS , c M-.; Family Property

and Support Ac t, RSY , c , Par t I (Family Asset s), Part  (Family Home), Part ,

ss  and – ( Domestic Contracts). Many of t he aforementioned statut es have been

amended from t ime to time. As to First Nat ions communities choo sing to create their

own matri monial real prope rty laws, see Family Home s on Reserves and Mat rimonial

Interests or Rights Ac t, SC , c ; McMurter v McMurter,  ONSC .

Chapter : Matrimonia l Property Rights 

) Introduction

In , the province of Ontar io enacted the Family Law Refor m Act to ame-

liorate the hardship a nd injustice arisi ng under the doctr ine of separation

of property, whereby each spouse reta ined his or her own proper ty on the

breakdown or dissolution of m arriage. Section  of the Family La w Reform Act,

 empowered a court to order a d ivision of “fa mily assets” a nd, in excep-

tional circu mstances, a division of non-fa mily assets on mar riage breakdown,

regardless of which sp ouse was the owner of t he assets. General ly speaking,

a non-owning spou se would be granted an equ al share of the fa mily assets,

which included the mat rimonial home and ot her assets ordina rily used or

enjoyed by the family, but no interest in business a ssets would be granted to

the non-own ing spouse.

As of  March , Part I of t he Family Law Act elim inated the former

distinction bet ween “family asset s” and “non-family assets” by providi ng for

an equali zation of the value of all assets accumul ated by either spouse during

the marr iage in the event of marriage break down or death.

) Objectives of Family La w Act

In general terms, t he fundamenta l objective of Part I of the Family La w Act is

to ensure that on mar riage breakdown or death each spou se will receive a fair

share, which wi ll usua lly be an equa l share, of the value of asset s accumu-

lated during the cour se of matrimonial cohabitation. us, se ction () of the

Family Law Act provides as follows:

() e purpose of t his section i s to recogniz e that chil d care, household

management and  nancia l provision are the joi nt responsibil ities of the

spouses and th at inherent in the marital re lationship there is equa l contri-

bution, whether n ancial or othe rwise, by the spouses to the a ssumption

of these responsibi lities, entitl ing each spou se to the equal ization of the

net family prope rties, subjec t only to the equita ble considerations set out

in subsection ().

is provision does not empower a cour t to deviate from the norm of equal

division in the absence of circumsta nces that justif y a nding of uncon-

scionability w ithin the mean ing of section () of the Family Law Act. As

Hughes J, of the Ont ario Superior Court of Justice, observed in Janjua v K han,

 SO , c .

 RSO , c F..

 Brett v Brett (),  RFL (th)  (Ont CA); Fielding v Fielding ,  ONCA . See,

generally, Sec tion A()(a), below in this chapte r.