Matrimonial Property Rights

AuthorJulien D. Payne, Marilyn A. Payne
  
Matrimonial Property Rights
Over thir ty years ago, the Supreme Court of C anada in 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,
Chapter : Matrimonia l Property Rights 
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? 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 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 ion communities choosi ng 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 .
  
) 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 doctri ne 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 ma rriage break down or death each spou se will receive
a fair share, whic h will us ually be an e qual share, of the va lue of assets ac-
cumulated dur ing the course of matrimonial cohabitation. u s, subsection
() of the Family Law Act provides as fol lows:
() 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 nor m of equal div-
ision in the absence of circu mstances that just ify a nding of unconscionabilit y
SO , c .
RSO , c F.. For proposed changes, se e Ontario Law Refor m Commission, Rep ort
on Family Propert y Law (including E xecutive Summa ry) (Toronto: Ontario Law Refo rm
Commission,  ); see also Ontar io Law Reform Comm ission, e Rights and Re-
sponsibilitie s of Cohabitants under the Fami ly Law Act (includ ing Executive Sum mary)
(Toronto: Ontario Law R eform Commission,  ).

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