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Difference between revisions of "Property and Debt in Family Law Matters"
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Property and Debt in Family Law Matters (view source)
Revision as of 17:12, 27 June 2019
, 17:12, 27 June 2019→Property claims and people who aren't spouses
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==Property claims and people who aren't spouses== | ==Property claims and people who aren't spouses== | ||
People are not spouses within the ''[[Family Law Act]]'' definition at s. 3, described above, 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, they will have to prove an entitlement to that asset through the principles of the common law. | People who are not spouses within the ''[[Family Law Act]]'' definition at s. 3, described above, 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, they will have to prove an entitlement to that asset through the principles of the common law. | ||
===Jointly-owned assets=== | ===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 their share of that asset, it is open to that person to start a court proceeding for either: | 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 their share of that asset, it is open to that person to start a court proceeding for either: | ||
#an order for the sale of the asset and the division of the proceeds of the sale, or | #an order for the sale of the asset and the division of the proceeds of the sale, or | ||
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*a resulting trust. | *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 | 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 kinds 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. | 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. | ||
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''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 claimant's benefit or advantage, such as the loss of the money or the wages that might have been paid for labour or other 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, they will have established that the respondent was ''unjustly enriched'' by their contributions, and the court may impose a constructive trust to fix the situation. | ''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 claimant's benefit or advantage, such as the loss of the money or the wages that might have been paid for labour or other 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, they will have established that the respondent was ''unjustly enriched'' by their contributions, and the court may impose a constructive trust to fix the situation. | ||
(There are two other | (There are two other cases from the Supreme Court of Canada that are critical in understanding constructive trusts, a 1993 case called ''[http://canlii.ca/t/1fs3f Peter v. Beblow]'', [1993] 1 S.C.R. 980, and a 2011 case called ''[http://canlii.ca/t/2fs3h Kerr v. Baranow]'', [2011] 1 S.C.R. 269. To get a proper understanding of the law relating to constructive trusts, you should read all of ''Pettkus v. Becker'', ''Peter v. Beblow'', and ''Kerr v. Baranow''.) | ||
Here's an example: | Here's an example: | ||
<blockquote>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 because he used to be a bookkeeper.</blockquote> | <blockquote>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 because he used to be a bookkeeper.</blockquote> | ||
<blockquote>Lois doesn't pay Frank for his labour; perhaps it's understood that Frank is helping out with a common <span class="noglossary">cause</span>, 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.</blockquote> | <blockquote>Lois doesn't pay Frank for his labour; perhaps it's understood that Frank is helping out with a common <span class="noglossary">cause</span>, since Lois's 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.</blockquote> | ||
<blockquote>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.</blockquote> | <blockquote>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.</blockquote> | ||
<blockquote>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 or bookkeeper for some other company. Furthermore, Frank has made a positive contribution to Lois' company and helped it thrive and prosper.</blockquote> | <blockquote>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 or bookkeeper for some other company. Furthermore, Frank has made a positive contribution to Lois' company and helped it thrive and prosper.</blockquote> | ||
<blockquote>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 handsome internet service provider in Alberta were for both business and pleasure.</blockquote> | <blockquote>The months pass. Lois's company has grown in value, and the relationship comes to a tragic end when Frank discovers that Lois' trips to visit the handsome internet service provider in Alberta were for both business and pleasure.</blockquote> | ||
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. | 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. | ||
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Once an unjust enrichment has been found, the court must determine what the appropriate remedy would be to compensate the applicant for their 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. | Once an unjust enrichment has been found, the court must determine what the appropriate remedy would be to compensate the applicant for their 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 Frank'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 Frank's efforts? This is the beginning of fixing a dollar value on Frank's interest in the company and in Lois' house. | In the example above, a concrete value can be attached to Frank'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 Frank's efforts? This is the beginning of fixing a dollar value on Frank's interest in the company and in Lois's 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 recommend that you hire a lawyer to help. | 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 recommend that you hire a lawyer to help. | ||