Matrimonial Property Rights

AuthorJulien D. Payne/Marilyn A. Payne
Cha pter 13
Matrimonial Property Rights
Over forty years a go, the Supreme Court of Canada in Murdoch v Murdoch1
concluded that a wife who had worked a longside her husband in the elds
was not entitled to any interest in the ra nch that had been originally pu r-
chased with h is money. Her homemaking role and hard physica l labour on
the farm counted for nothing. Se veral years later, the Supreme Court of Can-
ada saw the error of its ways and invoked t he doctrine of unjust enrichment
to enable wives2 and un married cohabita nts3 to share in propert y acquired
or preserved by their pa rtners during coh abitation. In the meantime, 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 enacte d legislation to estab -
lish property- sharing r ights between spouses on ma rriage breakdown or
divorce and, in some provinces, on deat h.4
2 Rathwell v Rathwell (1978), 1 RFL (2d) 1 (SCC).
3 Pettkus v Becker, [1980] 2 SCR 834, 19 R FL (2d) 165; Sorochan v Sorochan, [1986] 2 SCR 38.
And see Chapte r 3, Section E.
4 See Matrimonial Property Act, RSA 2 000, c M-8; Family Law Act, SBC 2011, c 25, Part
5; Marital Property Act, CCSM c M 45; Marital Property Act, SNB 1980, c M-1.1 ; Family
Law Act, RSNL 1990, c F-2, Pa rt I (Matrimoni al Home), Part II (Matri monial Assets),
Part IV (Do mestic Contracts); Matrimonial Property Ac t, RSNS 1989, c 275; Family L aw
Act, SNWT 1997, c 18, Par t I (Domestic Contracts), Par t III (Family Prope rty), Part IV
(Family Home); Family Law Act, RSO 1990, c F.3, Part I (Fami ly Property), Part II ( Matri-
monial Home), Part I V (Domestic Contrac ts); Family Law Act, SPEI 1995, c 12, Part I
(Family Prop erty), Part II (Fami ly Home), Part IV (Domesti c Contracts); Civil Code of
Canadi an family law696
ree fundamental questions require consideration i n any attempt to
divide propert y between spouses on the ter mination of their rel ationship.
ey are as follows:
1) What kind of proper ty falls subject to div ision?
2) How is the property to be va lued?
3) How will the sha ring of property be achieved?
In some provinces and terr itories, a wide judicia l discretion ex ists and
distinctions a re drawn between “ family ass ets” that both spouses use a nd
“business” or “commercia l” assets t hat are associated w ith only one of the
spouses. In others, no such d istinctions ex ist. In most provinces and ter-
ritories, the court s are empowered to divide spec ic assets. In Ontar io, it is
the value of property, as di stinct from the property itself, that is shared; all
assets must be valued, a nd each spouse is presumptively entitled to an equ al
share in the value of t he assets acquired by either or both of them.
Provincia l and territorial matr imonial property statutes u sually exclude
premarital a ssets from division and also certa in postmarital assets, suc h as
third-par ty gifts or i nheritances and da mages or monetary 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 marr iage breakdown, howeve r, the
control and management of an asset i s legally vested in the owner. Provi ncial
and territoria l statutes, neverthe less, prohibit a title-holding spouse from
disposing of or encumb ering the matr imonial home without the consent of
his or her spouse.
Because the releva nt provincial and ter ritorial stat utes dier marked ly
in content and approach, it is impossible to provide a comprehensive a naly-
sis of the diverse provi ncial matri monial property regimes in the follow ing
pages. e authors will conse quently focus on the Ontar io statute, which
represents the most comprehensive provinci al legislation on mat rimonial
property rig hts in Canada.
Québec, SQ 1991, c 64, Book 2 ; Matrimonial Property Act, 1997, SS 1997, c M-6.11; Family
Property and S upport Act, RS Y 1986, c 63, Part I (Fami ly Assets), Part 2 (Fami ly Home),
Part 4, ss 1 and 5 8–65 (Domestic Cont racts). Many of the aforementi oned statutes have
been amended f rom time to time. As to Fir st Nations communities c hoosing to create
their own m atrimonial rea l property laws, s ee Family Homes on Reserves a nd Matrimon-
ial Interests or Rights A ct, SC 2013, c 20; McMurter v McMurter, 2016 ONSC 12 25.
Chapter 13: Matrimonial Property Rights 697
1) Introduction
In 1978, the province of Ontar io enacted the Family Law Reform Act5 to amel-
iorate the hardship and injust ice arising under t he doctrine of separat ion
of property, whereby each spouse reta ined his or her own propert y on the
breakdown or dissolution of m arriage. Section 4 of the Family La w Reform Act,
1978 empowered a court to order a d ivision of “fam ily assets” and, in e xcep-
tional circu mstances, a division of non-fa mily assets on marr iage breakdown,
regardless of which sp ouse was the owner of the a ssets. Generally spe aking,
a non-owning spou se would be granted an equ al share of the fami ly assets,
which included the mat rimonial home and other a ssets ordinarily used or
enjoyed by the family, but no interest in business a ssets would be granted to
the non-owning s pouse.
As of 1 March 1986, Part I of t he Family Law Act6 elimi nated the former
distinction bet ween “family assets” a nd “non-family assets” by providing for
an equali zation of the value of all assets acc umulated by either spouse duri ng
the marri age in the event of marriage breakdow n or death.
2) Objectives of Family La w Act
In general terms, t he fundamental objective of Part I of the Family Law A ct
is to ensure that on mar riage breakdown or death each spou se will receive a
fair share, whic h will usual ly be an equal share, of the value of as sets accumu-
lated during the cour se of matrimonial cohabitation. u s, section 5(7) of the
Family Law Act provides as follows:
(7) e purpose of t his section is to rec ognize th at child care, hous ehold
management and  nancial prov ision are the joint resp onsibilities of the
spouses and th at inherent in the marital re lationship there is equa l contri-
bution, whether na ncial or otherwise, by t he spouses to the assumption
of these responsibi lities, entitl ing each spouse to t he equaliz ation of the
net family proper ties, subject only to the equitable c onsiderations set out
in subsection (6).
is provision does not empower a cour t to deviate from the norm of equal
division in the ab sence of circumstances t hat justify a  nding of uncon-
scionability w ithin the meani ng of section 5(6) of the Family Law Act.7 As
Hughes J, of the O ntario Superior Court of Justice, observed i n Janjua v Khan,
5 SO 1978, c 2.
6 RSO 1990, c F.3.
7 Brett v Bret t (1999), 46 RFL (4th) 433 (Ont CA ); Fielding v Fielding, 2015 ONCA 901. See,
generally, Sec tion A(10)(a), below in this chapter.

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