Chapter 14

Division of 90Property and

Support

Family Property
Historically in English common law, women
could not own property. Husbands were always
in complete control of family property, such as
a house or farm.
Furthermore, in traditional divorces the husband
and wife walked away
90 from the marriage with
whatever they paid for.
This process was unfair to many women who
maintained domestic roles during their marriages
and did not work much outside of the home.
If women did work, their husbands still earned
more money, as women were not paid equally.

The Family Law Act

The first significant legislation to recognize
marriage as an equal partnership was the Family
Law Reform Act, which led to the Family Law
Act.
The first Family Law Act was passed in the
province of Ontario90in 1986.
Legally married spouses, including same-sex
couples, are now entitled to their fair share of
everything valuable that was acquired during the
marriage.

Property & Payments

Equalization divides the value of property
equally between divorcing spouses.
Common property items include property such
as a house or apartment, as well as financial
accounts, business interests, furniture,
appliances, and other personal property.
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Debts must also be divided equally if they
belong to both spouses. This includes
mortgages, loans, and credit card balances.
Net family property refers to the net worth of
each individual spouse.
The spouse who has a greater net worth is
usually ordered to provide the other spouse with
an equalization payment.

Calculating Payments
The following six steps are used to calculate family
property and equalization payments.
Step 1 the spouses list their assets (joint and separate)
on the date of separation.
Step 2 individual gifts and inheritances are removed or
subtracted from the asset list.
90also subtracted.
Step 3 total debts are
Step 4 value of assets (without debts) are listed on the
date of marriage.
Step 5 the amount from Step 4 is subtracted from the
amount in Step 3 to determine each spouses net family
worth.
Step 6 the lower net worth is deducted from the higher
one, and the difference is divided by two to determine how
much the equalization payment will be.

Unequal Division of Property

There are certain situations in which marital

property can be distributed unequally.
1. Length of marriage: if the length of the marriage is
very brief and one spouses personal assets are
significantly higher than the others, it may be unfair
to divide everything equally.
90 was acquired: if a spouse
2. Date when an asset
purchased something just before the separation and
the other spouse never had time to enjoy it, the
spouse who purchased it may get to keep it.
3. Gifts and inheritances: personal items that are
meant for an individual such an inheritance; it would
be unfair to force a spouse to split a gift or
inheritance that was specifically meant for that
spouse only.

The Matrimonial Home

The home that the spouses use regularly during
their marriage is the matrimonial home.
This may be a house, condominium, mobile
home, or almost any other dwelling owned by
one or both spouses.
90 equal right to live in the
Each spouse has an
matrimonial home and to not be forced out.
In a separation, one spouse may be granted
sole possession of the home for a certain period.
During the divorce, the matrimonial homes
value is usually divided between the spouses.

Principles of Property Division

1. The property is to be divided equally between
spouses unless it would result in an injustice
or inequity.
2. Contributions of a spouse who was mostly or
wholly responsible for managing the home
and taking care of the children must be
90 courts.
recognized by the
3. Each spouses contributions must be legally
recognized, including money earned and the
acquisition of property and assets.
***If one spouse dies, the other spouse usually
receives the property. If there is no will, the
surviving spouse may apply to the court.

Common Law Relationships

Also known as cohabitation, the act of living
together in an intimate relationship without being
married is a common law relationship.
In Canada, the law provides many of the same
protections (but not all) for common law
couples that exist 90
for those who are legally
married.
Over the past several years, cohabitations
have become much more common as many
couples are choosing to live together without
being formally married.

Common LawProperty
When a married couple separates, they have an
automatic right to divide property equally.
This does not apply to common law couples.
In a common law relationship, the property
belongs to the person who paid for it.
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If the couple purchased
something together, it
will be divided equally if they separate, or it can
be divided based on how much each of them
contributed toward the purchase.
If one common law partner contributes toward
anothers success, the contributing partner may
be entitled to further property rights.

Manitobas Law
In 2004, the province of Manitoba passed the
Common Law Partners Property Act, which
states that the rights of common law and
married couples are similar after a certain period
of time:
a common law couple
90 who live together for 3 years
a common law couple who live together for 1 year and
have a child together

This entitles common law couples to equal

division of property and assets, like married
couples.

Spousal Support
Financial assistance provided by one spouse to
another following separation is known as
spousal support or maintenance.
This type of support is intended to assist a
former spouse until he or she becomes selfsufficient.
90
Every case is decided on its own merits.
Spousal support is also meant to relieve any
economic hardship one of the spouses
experiences from the marriage breakdown.
There are various factors used to determine how
much spousal support should be given and for
how long.

Spousal Support Factors

The following factors are considered when
determining spousal support:
assets and income of each spouse, including current
and future earning ability.
ability of each spouse to be self-sufficient.
ability of each spouse to provide support to the other
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spouse (if necessary).
age and health of each spouse.
length of time the spouses were together.
contributions of each spouse to the home and family.
length of time a spouse may need to acquire or further
improve his or her employability skills.

Length of Support
Spousal support is often limited to a short
period of time for short-term relationships that do
not involve children, or if the couple is young.
This type of support may go on indefinitely in
some cases, but is not meant to go on forever.
Either spouse may90apply for the support order to
be reviewed.
A review may increase, decrease, cancel, or
simply continue the support order.
If circumstances change, so may the support
order (e.g. the supporting spouse makes more
money; the spouse receiving support gets a job).

Child Support
Parents have a responsibility to provide for their
children up to the point of adulthood, whether
they remain married or separate.
The federal government and each province have
child support guidelines to determine how
much financial support
a non-custodial parent
90
must provide for his or her children.
Every province uses a table that reflects the
non-custodial parents annual income and the
number of children that must receive support.
The higher the income and/or the number of
children, the higher the child support.

Exceptions
There are some possible exceptions to the
support payment tables:
If the payments cause undue or excessive financial
hardship for the paying parent, the amount may be
adjusted.
If there is joint custody.
90
If the child is 18 years old or older, the tables become
a starting point, but the amount could be adjusted to
pay less or more, depending on the situation.
If the parents annual income exceeds $150,000. Most
Canadians do not earn this type of salary. These
cases are decided individually.

Enforcement
There are various options available to different
levels of government to enforce child support
payments.
The federal government can deduct federal
money payable to the parent or refuse to issue
them important documents,
like a passport.
90
Provincial governments can take further action,
such as garnishing the parents wages.
Alberta and Ontario are the first two provinces to
launch websites that list photos and personal
information on parents who fail to make their
child support payments in an effort to humiliate
them into paying.

Domestic Contracts

A domestic contract is an agreement

between partners that outlines their specific
rights and obligations in a relationship.
There are 3 main types of domestic contracts:
1. Cohabitation agreements
2. Marriage contracts
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3. Separation agreements

Domestic contracts have become more

popular in recent years as many couples seize
the opportunity to communicate and record
their concerns.

Types of Domestic Contracts

Cohabitation Agreement
A contract between two unmarried people who
live together in a common law relationship.
Marriage Contract
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A contract between two married people, or a
couple that plan to marry (commonly referred to
as a pre-nup, but that term has no legal effect).
Separation Agreement
A contract between a couple that is separating;
usually involves a division of property.

Terminating a Domestic Contract

A domestic contract may be terminated
by mutual agreement between the two parties.
if there is a time limit on the contract that expires.

A contract may also be reviewed and amended

every few years to reflect changes in the lives of
the couple (e.g. children
are born, new property
90
is bought or sold, a career or job change, more
money is made by one person).