Property and Debt in Family Law Matters

This chapter focuses on the division of property and debt between spouses.

Under the provincial Family Law Act, spouses are presumed to keep what each of them brought into their relationship and to share in the things they acquired during their relationship. The same rules apply about debt: spouses are presumed to share responsibility for the debts that accumulated during their relationship.

The federal Divorce Act doesn't talk about the division of property or debt.

This introductory section provides basic information about property and debt between spouses and summarizes how the property rules of the Family Law Act are different from the Family Relations Act. It also looks at the rules about property that apply to couples who are not spouses, and reviews some of the income tax issues that can come up when dividing property.

The sections that follow will go into the rules about the division of property and debt in a lot more detail.

Dividing property and debt under the Family Law Act

The parts of the Family Law Act about the division of property and debt apply to people who are spouses. The definition of spouse for these parts of the act are a bit different from the rest of the act. For the division of property and debt, a spouse is:

1. someone who is married or was married to someone else, or
2. someone who is or was living in a "marriage-like relationship" with someone else for at least two years.

People who lived together for less than two years are not spouses for these parts of the Family Law Act, whether they've had a child together or not.

Property and debt can be divided under the terms of a cohabitation agreement or a marriage agreement that the spouses made around the time they began to live together, or under the terms of a separation agreement that they made around the time they separated. If the spouses can't reach an agreement, a court can make an order about the division of property and debt.

Court proceedings for the division of property and debt must be started within two years of:

1. the date of divorce or annulment for married spouses, or
2. the date of separation for unmarried spouses.

Family property, excluded property and family debt

The Family Law Act talks about three things when it comes to dividing property and debt: family property, excluded property, and family debt.

All property owned by either or both spouses at the date of separation is family property. This includes things like real property, bank accounts, pensions, business, debts owing to a spouse, and so forth. Family property is presumed to be shared equally between spouses, regardless of their use of or contribution to that property.

Excluded property is any property that is excluded from the pool of family property to be split between spouses. This includes the property a spouse acquired before the date of marriage or the date the spouses began living together, whichever is earlier, plus certain property acquired during the spouses' relationship, including:

• property that was bought with the property brought into the relationship,
• inheritances and gifts, and
• some kinds of insurance proceeds and court awards.

Excluded property is presumed to remain the property of the spouse who owns it.

All debt incurred by either or both spouses from the date of marriage or the date the spouses began living together, whichever is earlier, to the date of separation is family debt. Responsibility for family debt is presumed to be shared equally between spouses, regardless of their use of or contribution to that debt.

Beginning and ending a spousal relationship

As you can see, certain dates in a couple's relationship are really important. The date a relationship begins, the earlier of the date the spouses begin to live together or marry, is the date that separates the excluded property brought into the relationship from the family property acquired during their relationship and the date when they begin to share responsibility for new debts. The date the spouses separate, generally speaking, marks the end of the accumulation of shared property and shared debt.

Living together and marrying

Under s. 3(3) of the Family Law Act, a relationship between spouses begins

... on the earlier of the following:

(a) the date on which they began to live together in a marriage-like relationship;

(b) the date of their marriage.

Since the definition of spouse at s. 3(1)(b)(i) includes people who have lived together "for a continuous period of at least 2 years", once you have reached the two-year mark:

1. you and your partner are spouses, and
2. your relationship as spouses began two years earlier, on the date you began to live together.

Separating

Although a married couple are married until they get a divorce, the key date for the division of property and debt under the Family Law Act is the date of separation. This date is important for both married spouses and unmarried spouses.

Although many people move out when they separate, other couples separate and remain living under the same roof. A physical separation is not necessary to separate; there must simply be an intention to end the relationship and the intimacies that go along with it. Often the decision to separate is made by both spouses, but it only takes one spouse decide to end a relationship, and a spouse's decision to separate doesn't require the consent of the other spouse.

Section 3(4) of the act says this:

(a) spouses may be separated despite continuing to live in the same residence, and

(b) the court may consider, as evidence of separation,

(i) communication, by one spouse to the other spouse, of an intention to separate permanently, and

(ii) an action, taken by a spouse, that demonstrates the spouse's intention to separate permanently.

In other words, to separate, one spouse must announce the end of the relationship and then take steps that would demonstrate an intention to end the relationship. Separation is discussed in more detail in the chapter Separation & Divorce within the section Separation.

Property brought into the relationship

Under s. 85(1)(a), property that was brought into a relationship is excluded from the pool of family property that is supposed to be divided equally between spouses. Under s. 96, the court "must not" order a division of excluded property, except in limited circumstances. A spouse is therefore entitled to keep the excluded property he or she owns. Under s. 85(2), however, it is up to the person who's saying that property is excluded property to prove that the property is excluded property.

For most couples, property brought into a relationship will form the largest component of a spouse's excluded property. However, when most people marry or move in together, counting up their assets is not the foremost thing on their mind. This means that you may wind up having to do some historical accounting to figure out what you had one, two or more years ago. Whether you're just starting a relationship or are trying to figure out what you once had, these are the documents you need to look for:

• bank statements for the period which includes the date you began to live together or got married, whichever came first,
• RRSP, RIF, LIRA and other retirement savings account statements for the same period,
• any employee pension statements that cover the date you began to live together or got married,
• mutual fund and other investment account statements for that period,
• any BC Assessment statements for the year in which you began to live together or got married,
• mortgage and line of credit statements for that period which includes the date you began to live together or got married, and
• credit card and loan statements for that period.

It will be a harder to look back in time to figure out the value of things like cars, motorcycles, trailers, boats, snowmobiles and so on. If you're entering a relationship now, it will be helpful to look up the Canadian Black Book or Kelly Blue Book Canada estimated values for vehicles. Boats and trailers may need to be specially valued by a dealer.

Property and debt acquired during the relationship

In most circumstances, the property either or both spouses acquire during their relationship will be family property, but there are some important exceptions.

Family property

Under s. 84(1) of the Family Law Act, family property is the property owned by one or both spouses on the date of their separation, including any property bought after separation with family property. Section 84(2) give some examples of specific assets that are family property, including:

• interests in companies, businesses, partnerships and ventures,
• money owed to a spouse, and
• bank accounts, savings, pensions and RRSPs.

Family property also includes the amount that any excluded property grows in value after the date the spouses' relationship began or after the excluded property was acquired, whichever is later.

Under s. 81, family property is presumed to be shared between the spouses equally, regardless of their use or contribution to that property.

Excluded property

The sort of excluded property that can be acquired during a relationship is described in s. 85(1), and includes:

• gifts,
• inheritances,
• court awards and settlements,
• insurance payments, and
• property held in trust, providing that the spouse didn't put the property into the trust.

Excluded property that is acquired during a relationship is presumed to remain the property of the spouse who owns it. However, under s. 85(2), it is up to the person who's saying that property is excluded property to prove that the property is excluded property.

Family debt

Under s. 86, family debt is all debt incurred by either or both spouses during their relationship up to the date of their separation, but can include debt incurred after separation if the debt was incurred to maintain family property, like a loan taken out to pay the property taxes.

This definition means that debt incurred by a spouse before the spouses married or began to live together is that spouse's personal debt; it's only the new debt that they share. Under s. 81, responsibility for family debt is presumed to be shared between the spouses equally, regardless of their use or contribution to that debt.

Dividing property and debt: an example

Let's look at an example to make things a bit easier to understand.

Harkamal moved in to live with Baljinder in his home in 2009, when Baljinder's home was worth $300,000; Baljinder has no mortgage.

Harkamal starts going to college in 2010 and because she's not working, she takes a personal loan to help pay for her tuition fees, lab fees and textbook costs. Baljinder keeps working while Harkamal is at school, and with his income, he pays for the property taxes, car insurance, utilities and groceries and so forth. He's also able to put some money away into RRSPs.

Harkamal and Baljinder separate in 2013. When they separate, Harkamal owes $12,000 for her personal loan, Baljinder's house is worth $400,000 and Baljinder has saved $30,000 in RRSPs.

In this example, Baljinder's house is his excluded property. It was worth $300,000 when Harkamal began living with him, and it has increased in value by $100,000. The family property is the RRSPs that Baljinder saved, plus the increase in value of Baljinder's house during the relationship. The family debt is Harkamal's loan which was incurred entirely during the parties' relationship and is now up to $12,000.

Boiling this all down, Baljinder would get:

• $300,000 as the value of the home he brought into the relationship,
• $50,000 for one-half of the growth in the value of his house to the date of separation,
• RRSPs worth $15,000, and
• responsibility for $6,000 of Harkamal's loan.

Harkamal would get:

• $50,000 for one-half of the growth in the value of Baljinder's house,
• RRSPs worth $15,000, and
• responsibility for the remaining $6,000 of her loan.

Property claims and people who aren't spouses

People are not spouses within the Family Law Act definition at s. 4 cannot make a claim for the division of property or debt through that act. When people who aren't spouses own an asset jointly, like a house or a car, they are presumed to each be entitled to half of the value of that property. Where a person claims a share of property owned only by the other person, he or she will have to prove an entitlement to that asset through the principles of the common law.

Jointly-owned assets

Where a couple are both on the title of an asset, whether the family home, a car or a bank account, they are each assumed to have an equal interest in the asset. When one party refuses to give the other his or her share of that asset, it is open to that person to start a court proceeding for either:

1. an order for the sale of the asset and the division of the proceeds of the sale, or
2. an order for payment in compensation for his or her interest in the asset.

Where real property is jointly owned, it is possible to make a claim under the provincial Partition of Property Act. Section 2 of this act says that:

(1) All joint tenants, tenants in common, coparceners, mortgagees or other creditors who have liens on, and all parties interested in any land may be compelled to partition or sell the land, or a part of it as provided in this Act.

(2) Subsection (1) applies whether the estate is legal or equitable or equitable only. This act allows a co-owner, including someone with only an equitable interest in the property, potentially including an interest under the law of trusts as discussed below, to apply for an order that the property be sold and the proceeds of the sale divided.

In other words, if you jointly own real property with your partner, you can apply to court for an order that the property be sold and the proceeds of the sale be split between you.

Individually-owned assets

Where a person believes that he or she should have an interest in property owned only by the other person, a claim against that property can only be made under the common law, specifically the law of equity and the law of trusts.

The essential point of this sort of claim is that the non-owning party has, or should be considered to have, a stake in property owned by the other party. The non-owning party's interest in that property is said to be held in trust for the non-owning party by the person who owns the property on paper. The non-owning party is the beneficiary of that trust and should be entitled to receive compensation for his or her interest in the property under the trust.

There are three kinds of trust claim that may be made:

• a constructive trust,
• an express trust, and
• a resulting trust.

A resulting trust happens when the behaviour of the parties will let the court infer the existence of a trust relationship; an express trust is a trust relationship that people intentionally enter into; and, a constructive trust is imposed in order to compensate someone for their interest in property when the interest can't be paid out immediately. Resulting and constructive trusts are the most common kind of trusts involved in family law disputes about property.

Needless to say, this area of the law can be complex. If you find yourself in a situation where your only claim to an asset or a share of an asset is through trust law, it is recommended that you hire a lawyer to handle your claim.

Resulting trusts

A resulting trust can be created in the following circumstances:

• one party loans or gives money to the other party to allow him or her to buy an asset, and the person buying the asset owns the asset in his or her name alone, or
• one party transfers property to another without payment.

In each case, the person who transfers the money or asset to the other party is said to retain an interest, called a beneficial interest, in the property even though the property is held by the other party in his or her name alone. In a court proceeding based on a resulting trust, the person making the claim, the claimant, is asking for compensation for his or her beneficial interest in the property owned by the respondent, the person against whom the claim is brought.

Unjust enrichment and constructive trusts

A constructive trust is called constructive because the claimant is asking the court to create or impose a trust on the respondent where there wasn't one before. According to the Supreme Court of Canada's decision in the 1980 case of [Pettkus v. Becker,] [1980] 2 S.C.R. 834, the most important case on constructive trusts, the court will impose a trust on a respondent where the claimant has been able to show that the respondent has been unjustly enriched as a result of the claimant's efforts. Unjust enrichment is shown by proving that:

1. the respondent was enriched as a result of the claimant's contributions,
2. the claimant was correspondingly deprived, and
3. there is no legal reason for the respondent's enrichment.

Enrichment means to have received a benefit or advantage, such as money or the benefit of unpaid labour or other services. Deprivation means to have lost the value that might have been otherwise received for the benefit or advantage, such as the loss of the money or the wages which might have been paid for labour or services. The deprivation must correspond to the enrichment, in the sense that the claimant was deprived of exactly the thing from which the respondent benefited. If the claimant can show these things, he or she will have established that the respondent was unjustly enrichment his or her contributions, and the court may impose a constructive trust to fix the situation.

(There are two other case from the Supreme Court of Canada that are critical in understanding constructive trusts, a 1993 case called Peter v. Beblow, [1993] 1 S.C.R. 980, and a 200 XXXXX . To get a proper understanding of the law relating to constructive trusts, you should read both Pettkus v. Becker and Peter v. Beblow.)

Let's use another example to explain things.

Frank moves into a home owned by Lois. Frank's role in the relationship is that of a homemaker while Lois works outside the home and brings home the bacon. Frank also, out of the kindness of his heart, helps Lois with her web design company, doing her books.

Lois doesn't pay Frank for his labour; perhaps it's understood that Frank is helping out with a common cause, since Lois' company is what provides the family with its income, or perhaps Frank's help is just one of the things he does because he loves Lois. Either way, payment isn't offered and it's not asked for, as is often the case when people are in a relationship.

Frank's labour in the home, cooking, cleaning and tidying, allows Lois to devote her time to the web design company, and saves her from having to hire a housekeeper and a cook, not to mention having to hire an office manager for the company.

Frank, on the other hand, is losing something. Frank could have sold his services as a housekeeper, a launderer and a cook. Frank could certainly have worked as an office manager for some other company. Furthermore, Frank has made a positive contribution to Lois' company and helped it thrive and prosper.

The months pass. Lois' company has grown in value, and the relationship comes to a tragic end when Frank discovers that Lois' trips to visit the internet service provider in Alberta were for both business and pleasure.

In this example, Lois was unjustly enriched by Frank's labour in the home and his contribution to the web design company, as she didn't have to hire an office administrator or a housekeeper. Frank, on the other hand, lost out on months of wages as an office administrator, and months of wages as a housekeeper. Lois was enriched by exactly the thing Frank was deprived of: his labour, and the financial value and benefit of his labour.

Once an unjust enrichment has been found, the court must determine what the appropriate remedy would be to compensate the applicant for his or her interest in the property. The court will often determine the value of the trust based on the value of the contribution made by the applicant to the property or the purchase of the property.

In the example above, a concrete value can be attached to Franks's contributions to the company and to his labour in the home: what would it have cost to hire a housekeeper and a bookkeeper during that period? Or, how much did Lois' company grow in value as a result of Franks's efforts? This is the beginning of fixing a dollar value on Frank's interest in the company and in Lois' house.

Again, trust claims are complex and the case law supporting and opposing such claims is massive. If you are not a spouse and wish to make claim against property owned only by your partner, I recommended that you hire a lawyer to help.

Tax issues

For many people, there will be no tax impact from the division of their assets. There will, however, be a tax impact if the division creates what the Canada Revenue Agency deems to be income.

The most common kind of taxable income people have is employment income. Some other kinds of taxable income include:

• the money you get when you cash in an RRSP,
• money received by a shareholder from a company as a dividend or from the sale of his or her shares,
• the interest you get from a loan you've made to someone else, and
• the profit realized from the sale or transfer of real property that isn't the family's principle residence.

When you report this sort of income in your tax return, the CRA considers it to be taxable income, income that may be taxable at different rates.

The purpose of this part of this section is to alert you in a general way to the possibility that there may be tax implications as a result of family property being divided, and that there are sometimes ways to avoid this sort of unfairness. This is, however, a complex area of family law, and if you have a problem of this nature, you really should get the advice of a lawyer who specializes in tax issues; store-bought or online tax software will not identify these issues. You probably don't want to pay any more tax than is absolutely necessary!

Avoiding unfairness

The tax consequences of a particular arrangement in a court order or separation agreement can be taken into account when property is being divided, since the payment of tax by one party may fundamentally change the fairness of the agreement or order. Consider the this example.

Say Eli receives $100,000 in cash and George receives a rental house worth $100,000, and the cash and the rental house are all of the family property. At first glance, this seems like a fair, equal split of the family propert, which together come to a total of $200,000. In fact, it isn't.

No tax will be payable by Eli as a result of receiving the cash. Tax will be payable by George if the rental house has to be sold, since it wasn't the family's primary residence. If the tax payable on the income George earns from the sale is $20,000, really, Eli has received $100,000 and George has received $80,000. If you count the tax which George has to pay, the division of the family property wasn't equal at all.

To make the split equal, Eli should pay George an extra $10,000 so that each spouse will have $90,000 once the rental house is sold.

The same problem can arise if one spouse has to sell an asset in order to satisfy an order or agreement for the division of property and debt, such as making a lump-sum payment to equalize the value of the assets held by each party. This may result in the CRA assessing extra of taxable income to the party who had to sell the asset, with the consequence of an additional tax debt owed by that party to the CRA.

There is an easy way to avoid unfair tax consequences and preserve the intention of the agreement or court order: the agreement or order can recognize the negative tax consequences of a particular term and compensate the affected spouse, as in the example involving the rental house above. If you need to convince a court to take tax considerations into account in dividing assets, there are three general rules you should keep in mind:

• each case will depend on the particular circumstances of the parties,
• you should be able to provide an estimate of the tax which will be payable, and
• you must be able to show that the sale or transaction which will result in tax being payable is likely to occur #in the reasonably near future.

Dividing RRSPs

Normally, if you wish to cash out an RRSP, you have to pay tax on the RRSP as if the RRSP was taxable income, like employment income. Under the federal Income Tax Act, transfers of RRSPs between spouses are tax neutral, under what are called the tax-free spousal rollover provisions of the act.

When RRSPs are to be transferred between spouses according to a separation agreement or court order, the RRSPs are simply transferred between the spouses' RRSP accounts without having to cash them out, and no tax is payable.

Real property

When a piece of property is to be transferred between spouses according to a separation agreement or court order, the parties should use the province's Special Property Transfer Tax Form, to take advantage of the tax-free status of transfers between spouses made pursuant to family agreements and court orders. This form is normally completed during the process of transferring title to the property at the Land Title and Survey Authority, and no tax will be payable on the transfer.

Page resources and links

Legislation

• Family Law Act
• Partition of Property Act
• Income Tax Act

Links

• Canadian Bar Association BC Branch: Dividing property and debts
• Justice Education Society: Workbook for parents separated with children on dealing with finances
• Legal Services Society’s Family Law Website: How to divide property and debts
• Special Property Transfer Tax Return