Matrimonial Property Rights

• Author: Julien D. Payne/Marilyn A. Payne
• Pages: 587-648

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  

Matrimonial Property Rights

A. PROVINCIAL AND TERRITORIAL LEGISLATIVE

DIVERSITY

Over thi rty years ago, the Supreme Court of Canada in Murdoch v. Murdoch

concluded t hat a wi fe who had worked alongside her husband in the f‌ields

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

chased with his money. Her homemakin g 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 and invoked the doctri ne of unjust enrichment

to enable wives and unmarrie d cohabitants to share in property acquired or

preserved by their partners during cohabitation. In the meanti me, provin-

cial legisl atures introduced statutory reforms to ameliorate the harshness of

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

Every province and territory in Canada has enac ted legislation to estab -

lish propert y-sharing rig hts between spouses on marriage break down or di-

vorce and, in some provinces, on death. 

 (),  R.F.L.  (S.C .C.).

 Rathwell v. Rathwell (),  R.F.L. (d)  (S.C .C.).

 Pettkus v. Becker, []  S.C.R.  ,  R.F.L. (d) ; Sorochan v. Sorochan, [] 

S.C.R. ,  R .F.L. (d) . And s ee Chapter , Sectio n E.

 See Matrimonia l Property Act, R .S.A. , c. M -; Family Relations Ac t, R.S.B.C.,  ,

c. , Part  ; Marital Property A ct, C.C.S.M. c. M ; Marital Propert y Act, S.N.B. , c.

M-.; Family La w Act, R.S.N.L . , c. F-, Part I ( Matrimonial Home), Par t II (Matri-

monial As sets), Part IV (Domestic C ontracts); Matrimonial Prop erty Act, R. S.N.S. ,

c. ; Family Law A ct, S.N.W.T. , c. , Part I (Domestic Contract s), Part III (Family

Property), Par t IV (Family Home); Family La w Act, R.S.O. , c. F., Part I ( Family

Property), Par t II (Matrimoni al Home), Part IV (Domest ic Contracts); Family Law Act,

   

ree fundamental questions require cons ideration in any attempt to

divide property between spou ses on the termi nation of their rel ationship.

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 territories, a wide judici al discretion exists a nd

distinction s are d rawn between “family assets” t hat both spouses use and

“business” or “commercia l” as sets that are a ssociated wit h only one of the

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

ritories, the courts are empowered to divide specif‌ic a ssets. In Ontario, it is

the value of prope rty, as distinct from the property itself, t hat is shared; all

assets must be va lued and each spouse is presumpt ively entitled to an equal

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

Provincia l and territoria l matrimonial property statutes usua lly exclude

premarital assets from division a nd also certain p ostmarital assets, such as

third-par ty gif ts or inheritances and d amages or monetary compensation

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

Statutory property- sharing regimes are not dependent on which spouse

owned or acquired the assets. Prior to marriage breakdown, however, the control

and management of an asset is legally vested in the owner. Provincial and terri-

torial statutes, nevertheless, prohibit a title-holding spouse from disposing of or

encumbering t he matrimonial home without the consent of hi s or her spouse.

Because t he relevant provinci al and terr itorial statutes d if‌fer markedly

in content a nd approach, it is impossible to prov ide a comprehensive an aly-

sis of t he diverse provinci al matrimonial property regimes in the followi ng

pages. e authors consequently focu s on the Ontario statute, which repre-

sents the most comprehensive provi ncial leg islation on matrimonial prop-

erty rights i n Canada.

) Introduction

In , the province of Ontario enacted the Family L aw Reform Act to amel-

iorate t he hardship and injustice ar ising under the doctrine of separation

S.P.E.I. , c.  , Part I (Family Pro perty), Part II (Fam ily Home), Part IV (Domesti c

Contracts), Civil Code of Q uébec, S.Q. , c. , Book  ; Matrimonial Propert y Act, ,

S.S. , c. M-. ; Family Property and Sup port Act, R.S .Y. , c. , Part I ( Family

Assets), Part  (Fa mily Home), Part , ss.  and  – (Domestic Contr acts). Many of

the aforementione d statutes have been ame nded from time to time.

 S.O. , c. .

Chapter : Mat rimonial Property R ights 

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

breakdown or dissolution of marriage. Section  of the Family Law R efo rm A ct,

 empowered a court to order a division of “family assets” and, in excep-

tional circumsta nces, a division of non-family assets on marriage breakdow n,

regardless of wh ich spouse was the owner of the assets. Ge nerally speaking ,

a non-own ing spouse would be granted an equal sh are of the f amily assets,

which included the matrimonial home and other asset s ordinari ly used or

enjoyed by the family, but no interest in business as sets would be granted to

the non-owning s pouse.

As of  March , Part I of the Family L aw Act elim inated the former

distinction bet ween “family assets” and “non-family as sets” by providing for

an eq ual izati on of th e value of all assets accu mulated by either spouse during

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

) Objectives of Family Law Ac t

In general terms, the fundamental objec tive of Part I of the Family Law Act

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

a fai r share, wh ich will usually be an e qual share, of the v alue of asset s ac-

cumulated dur ing the course of matr imonial cohabitation. us, subsection

() of the Family Law Act provides as follows:

() e pu rpose of this sec tion is to recognize that ch ild care, household

management and f‌i nancial provision are the joint resp onsibilities of the

spouses and t hat inherent in the mar ital relationship t here is equal contri -

bution, whethe r f‌inancial or otherwi se, by the sp ouses to the a ssumption

of thes e responsibilit ies, entitlin g each spouse to the equal ization of the

net fami ly properties, subject only to the equitable considerations set out

in subsection ().

is provi sion does not empower a cour t to deviate f rom the norm of equ al

division in the absence of circ umstances that justify a f‌indi ng of unconscion-

ability wit hin the meaning of subsection () of the Family Law Act.

 R .S.O. , c. F.. For proposed changes , see Ontario Law Re form Commission, Re port

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 (includi ng Executive Summ ary)

(Toronto: Ontario Law R eform Commission,  ).

 Brett v. Brett (),  R.F.L. (t h)  (Ont. C.A.); Dhanesar v. Dhan esar, [] O.J. No.

 (Sup. Ct.). See, genera lly, Section A(), below in thi s chapter.