Matrimonial Property Rights

AuthorJulien D. Payne,Marilyn A. Payne
Date25 July 2022
Chapter 13
Matrimonial Property Rights
Over forty years ago, the Supreme Court of Canada in Murdoch v Murdoch1
concluded that a wife who had worked alongside her husband in the f‌ields
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 nothing. Several years later, the Supreme Court of Can-
ada saw the error of its ways and invoked the doctrine of unjust enrichment
to enable wives2 and unmarried cohabitants3 to share in property acquired or
preserved by their partners during cohabitation. In the meantime, provincial
legislatures introduced statutory reforms to ameliorate the harshness of the
Murdoch v Murdoch decision so far as married couples are concerned.
Every province and territory in Canada has enacted legislation to estab-
lish property-sharing rights between spouses on marriage breakdown or
divorce and, in some provinces, on death.4
1 (1973), 13 RFL 185 (SCC).
2 Rathwell v Rathwell (1978), 1 RFL (2d) 1 (SCC).
3 Pettkus v Becker, [1980] 2 SCR 834, 19 RFL (2d) 165; Sorochan v Sorochan, [1986] 2 SCR 38.
And see Chapter 3, Section E.
4 See Matrimonial Property Act, RSA 2000, c M-8; Family Law Act, SBC 2011, c 25, Part5;
Marital Property Act, CCSM c M45; Marital Property Act, SNB 1980, c M-1.1; Family Law
Act, RSNL 1990, c F-2, Part I (Matrimonial Home), Part II (Matrimonial Assets), Part
IV (Domestic Contracts); Matrimonial Property Act, RSNS 1989, c 275; Family Law
Act, SNWT 1997, c 18, Part I (Domestic Contracts), Part III (Family Property), PartIV
(Family Home); Family Law Act, RSO 1990, c F.3, Part I (Family Property), Part II (Matri-
monial Home), Part IV (Domestic Contracts); Family Law Act, SPEI 1995, c 12, Part I
Canadian family law738
ree fundamental questions require consideration in any aempt to
divide property between spouses on the termination of their relationship.
ey are as follows:
1) What kind of property falls subject to division?
2) How is the property to be valued?
3) How will the sharing of property be achieved?
In some provinces and territories, a wide judicial discretion exists, and
distinctions are drawn between “family assets” that both spouses use and
“business” or “commercial” assets that are associated with only one of the
spouses. In others, no such distinctions exist. In most provinces and terri-
tories, the courts are empowered to divide specif‌ic assets. In Ontario, it is the
value of property, as distinct from the property itself, that is shared; all assets
must be valued, and each spouse is presumptively entitled to an equal share
in the value of the assets acquired by either or both of them.
Provincial and territorial matrimonial property statutes usually exclude
premarital assets from division and also certain postmarital assets, such as
third-party gis or inheritances and damages or monetary compensation
received by a spouse from a third party as a result of personal injuries.
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 territorial statutes, nevertheless, prohibit a title-holding spouse from
disposing of or encumbering the matrimonial home without the consent of
his or her spouse.
Because the relevant provincial and territorial statutes dif‌fer markedly in
content and approach, it is impossible to provide a comprehensive analysis of
the diverse provincial matrimonial property regimes in the following pages.
e authors will consequently focus on the Ontario statute, which represents
the most comprehensive provincial legislation on matrimonial property
rights in Canada.
(Family Property), Part II (Family Home), Part IV (Domestic Contracts); Civil Code of
Québec, SQ 1991, c 64, Book 2; Matrimonial Property Act, 1997, SS 1997, c M-6.11; Family
Property and Support Act, RSY 1986, c 63, Part I (Family Assets), Part 2 (Family Home),
Part 4, ss 1 and 58–65 (Domestic Contracts). Many of the aforementioned statutes
have been amended from time to time. As to First Nations communities choosing to
create their own matrimonial real property laws, see Family Homes on Reserves and
Matrimonial Interests or Rights Act, SC 2013, c 20; McMurter v McMurter, 2016 ONSC 1225.
Chapter 13: Matrimonial Property R ights 739
1) Introduction
In 1978, the province of Ontario enacted t he Family Law Reform Act5 to ame l-
iorate the hardship and injust ice arising under the doctr ine of separation of
property, whereby each spouse retained his or her own property upon the
breakdown or dissolution of marr iage. Section 4 of the Family Law Reform
Act, 1978 empowered a cour t to order a division of “family as sets” and, in
exceptional circ umstances, a division of non-family assets upon mar riage
breakdown, regardless of wh ich spouse was the owner of the assets. Gen-
erally speak ing, a non-owning spouse would be g ranted an equal share of
the family asset s, which included the matrimon ial home and other assets
ordinarily used or enjoyed by the family, but no interest in business assets
would be granted to the non-own ing spouse.
As of 1 March 1986, Part I of the Family Law Act6 eliminated the former
distinction between “family assets” and “non-family assets” by providing for
an equalization of the value of all assets accumulated by either spouse during
the marriage in the event of marriage breakdown or death.
2) Objectives of Family Law Act
In general terms, the fundamental objective of Part I of the Family Law Act is
to ensure that, on marriage breakdown or death, each spouse will receive a
fair share, which will usually be an equal share, of the value of assets accumu-
lated during the course of matrimonial cohabitation. us, section 5(7) of the
Family Law Act provides as follows:
(7) e purpose of this sect ion is to recognize that ch ild care, household
management and f‌i nancial prov ision are the joint responsibilities of t he
spouses and that i nherent in the marita l relationship there is equ al contri-
bution, whether f‌inanc ial or otherwise, by the spous es to the assumption
of these responsibi lities, entitling e ach spouse to the equ alization of t he
net family proper ties, subject only to the equitable considerat ions set out
in su bsec tion (6).
is provision does not empower a court to deviate from the norm of equal
division in the absence of circumstances that justify a f‌inding of unconscion-
ability within the meaning of section 5(6) of the Family Law Act.7 As HughesJ,
of the Ontario Superior Court of Justice, observed in Janjua v Khan, “[i]t is
5 SO 1978, c 2.
6 RSO 1990, c F.3.
7 Brett v Brett (1999), 46 RFL (4th) 433 (Ont CA); Fielding v Fielding, 2015 ONCA 901. See,
generally, Section A(10)(a), below in this chapter.

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