Matrimonial Property Rights

• Author: Julien D. Payne, Marilyn A. Payne
• Pages: 597-660

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Matrimonial Property Rights

A. PROVINCIAL AND TER RITORIAL LEGISLATIVE

DIVERSITY

Over thir ty years ago, the Supreme Cour t of Canada i n Murdoch v Murdoch

concluded that a wife who h ad worked alongside her husband in t he elds

was not entitled to any interest in the ranch that had been originally pur-

chased with his money. Her homemaking role and hard physical labour on

the farm counted for noth ing. Several years later, the Supreme Court of Can-

ada saw the error of its ways a nd invoked the doctrine of unjust enric hment

to enable wives and un marrie d cohabitants to share in property acquired

or preserved by their partners duri ng cohabitation. In the mea ntime, prov-

incial leg islatures introduced statutory reforms to a meliorate the harshness

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

Every province and ter ritory in Can ada has enacted legislation to estab -

lish property-sharing rights between spouses on marriage breakdown or di-

vorce and, in some provinces, on death.

 (),  RFL  (SCC).

Rathwell v Rathwell (),  RFL (d)  (SCC).

Pettkus v Becker, []  SCR  ,  RFL (d) ; Sorochan v Sorochan,[]  SCR  , 

RFL (d)  . And see Chapter , S ection E.

 See Matrimonial Proper ty Act, RSA  , c M-; Family Law Act, SBC , c , Par t

; Marital Propert y Act, CCSM c M; Marit al Property Act, S NB , c M-.; Family

Law Act, RSNL , c F-, Par t I (Matrimoni al Home), Part II (Matrimo nial Assets),

Part IV (Dome stic Contracts); Matrimon ial Property Act , RSNS , c ; Family Law

Act, SNWT , c , Part I ( Domestic Contracts), Part I II (Family Proper ty), Part IV

(Family Home); Family Law Act, RSO , c F., Part I (Family P roperty), Part II (Mat ri-

monial Home), Part I V (Domestic Contracts); Family Law Act, SPEI , c , Part I

(Family Prop erty), Part II (Fami ly Home), Part IV (Domestic Contr acts), Civil Code of

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ree fundament al questions require cons ideration in any attempt to

divide property between spouses on the termination of their relationship.

ey are as follows:

) What kind of proper ty falls subject to divi sion?

) How is the property to be va lued? and

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

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

distinctions a re drawn between “ family a ssets” that both spou ses use and

“business” or “commercial” assets that are associated with only one of the

spouses. In others, no such disti nctions exist. I n most provinces and ter-

ritories, the court s are empowered to divide sp ecic assets. In Ont ario, it is

the value of property, as dist inct from the property itself, that is sha red; all

assets must be valued and each spouse is presumptively entitled to an equal

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

Provincia l and territorial matr imonial property statutes usu ally exclude

premarital a ssets from division and also certai n postmarital 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 i njuries.

Statutory propert y-sharing regimes are not dependent on whic h spouse

owned or acquired the asset s. Prior to marr iage breakdow n, however, the

control and management of an a sset is legally vested in the ow ner. Provincial

and territoria l statutes, neverthe less, prohibit a title-holdi ng spouse from

disposing of or encu mbering the mat rimonia l home without the consent of

his or her spouse.

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

in content and approach, it is impossible to prov ide a comprehensive analy-

sis of the diverse provinc ial matri monial propert y regimes in the fol lowing

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

represents the most comprehensive provinc ial legis lation on matrimon ial

property rights in Canada.

) Introduction

In , the province of Ontar io enacted the Family Law Reform Act to amel-

iorate the hardship and injust ice arising u nder the doctrine of sepa ration

Québec, SQ , c , Book ; Mat rimonial Propert y Act, , SS , c M-.; Famil y

Property and S upport Act, RS Y , c , Part I (Fami ly Assets), Part  (Fami ly Home),

Part , ss  and  – (Domestic Contr acts). Many of the aforementioned st atutes have

been amended from t ime to time.

 SO , c .

Chapter : Matrimonial Property Rights 

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

breakdown or di ssolution of marriage. Sec tion  of the Family Law Reform Act,

 empowered a court to order a d ivision of “f amily assets” a nd, in excep-

tional circumstances, a division of non-family assets on marriage breakdown,

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

a non-owning spouse wou ld be granted an equa l share of the fam ily assets,

which included the mat rimonial home a nd other assets ordina rily used or

enjoyed by the family, but no interest in business asset s would be granted to

the non-owning spouse.

As of  March , Part I of the Family Law Act eliminated the former

distinction bet ween “family assets” a nd “non-family assets” by providing for

an eq ual izati on of th e value of all assets accumu lated by either spouse during

the marr iage in the event of marriage brea kdown or death.

) Objectives of Family Law Act

In general terms, t he fundamenta l objective of Part I of t he Family Law Act

is to ensure that on marriage breakdown or death each spouse will receive

a fair share, whic h will usu ally be an equ al share, of the va lue of assets ac-

cumulated during the course of matrimonial cohabitation. us, subsection

() of the Family Law Act provides as fol lows:

() e purpose of this se ction is to recogn ize that ch ild care, house hold

management and  nancial pro vision are the joi nt responsibilit ies of the

spouses and th at inherent in the marita l relationship there is equa l contri-

bution, whether n ancial or otherwise, b y the spouses to the assumption

of these responsibi lities, entitl ing each spouse to t he equali zation of the

net family proper ties, subject only to the equitable cons iderations set out

in subsection ().

is provision does not empower a cour t to deviate from the nor m of equal

division in the abse nce of circumsta nces that justif y a nding of uncon-

scionability w ithin the mean ing of subsection () of the Family La w Act. As

Hughes J, of the Ontario Superior Cou rt of Justice, observed in Janjua v Kh an,

“[i]t is quite common for spouses to make unequa l contributions of money and

 RSO , c F.. For proposed changes, see O ntario Law Reform Com mission, Report

on Family Property Law (includi ng Executive Summ ary) (Toronto: Ontario Law Refor m

Commission,  ); see also Ontar io Law Reform Commis sion, e Rights and Re-

sponsibilities of Coha bitants under the Family L aw Act (including Ex ecutive Summar y)

(Toronto: Ontario Law Re form Commission,  ).

Brett v Brett (),  RFL (th)  (Ont CA ); Dhanesar v Dhanesar, [] OJ No 

(Sup Ct). See, generally, Sect ion A()(a), below in this chapter.