Property & Debt in Family Law Matters

From Clicklaw Wikibooks

This chapter focuses on the division of propertySomething which can be owned. See "chattels" and "real property." and debtA sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt; a "creditor" is the person to whom the debt is owed. between married spouses and unmarried spouses. Under the provincial Family Law Act, spouses are presumed to keep the property that 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. 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, the steps that you can take to protect family property, and how property and debt are divided by the court through court orders and by spouses through separation agreements.

Dividing property and debt under the Family Law Act

The parts of the Family Law Act that talk about the division of property and debt apply to people who are spouses. The definition of spouseUnder the ''Divorce Act'', either of two people who are married to one another, whether of the same or opposite genders. Under the ''Family Law Act'', married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years but have had a child together. See "marriage" and "marriage-like relationship." for these parts of the actIntentionally doing a thing; a law passed by a government, also called "legislation" or a "statute." See "regulations." 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 relationshipIn family law, the quality of an unmarried couple's relationship that demonstrates their commitment to each other, their perception of themselves as a couple and their willingness to sacrifice individual advantages for the advantage of themselves as a couple; a legal requirement for a couple to be considered spouses without marrying. See "cohabitation," "marriage" and "spouse."" 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 agreementAn agreement signed by people who are or have begun to live together in a marriage-like relationship that is intended to govern their rights and obligations in the event of the breakdown of their relationship and, sometimes, their rights and obligations during their relationship. See "family law agreement." or a marriage agreementAn agreement signed by people who are planning on marrying or have married that is intended to govern their rights and obligations in the event of the breakdown of their marriage and, sometimes, their rights and obligations during their marriage. See "family law agreement." that the spouses made around the time they began to live together, or under the terms of a separation agreementA contract intended to resolve all or some of the issues outstanding following the breakdown of a relationship and intended to guide the parties in their dealings with one another thereafter. A typical separation agreement is signed following a settlement reached through negotiations and deals with issues including guardianship, parenting arrangements, contact, support, the division of property and the division of debt. See "family law agreements." that they made around the time they separated. If the spouses can't reach an agreement, a court can make an orderA mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision" and "declaration." 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 divorceThe legal termination of a valid marriage by an order of a judge; the ending of a marital relationship and the conjugal obligations of each spouse to the other. See "conjugal rights," "marriage," and "marriage, validity of." or annulmentA declaration by a judge that a marriage is invalid. The effect of such a declaration is to make it as if the marriage never occurred. See "ab initio," "declaration" and "marriage, validity of." for married spouses, or
  2. the date of separationIn family law, the decision of one or both parties to terminate a married or unmarried relationship; the act of one person leaving the family home to live somewhere else with the intention of terminating the relationship. There is no such thing as a "legal separation." In general, one separates by simply moving out, however it is possible to be separated but still live under the same roof. See "divorce, grounds of." for unmarried spouses.

Family property, excluded propertyA term under the ''Family Law Act'' referring to property acquired by a spouse prior to the commencement of the spouses' relationship and certain property acquired by a spouse during the relationship, including gifts, inheritances, court awards and insurance proceedings. A spouse is presumed to be entitled to keep his or her excluded property without having to share it with the other spouse. See "family property," "gift," and "inheritance." and family debtA term under the ''Family Law Act'' referring to debt owed by either or both spouses that accumulated during the spouses' relationship and after separation, if used to maintain family property. Both spouses are presumed to be equally liable for family debt.

The Family Law Act talks about three things when it comes to dividing property and debt: family propertyA term under the ''Family Law Act'' referring to property acquired by either or both spouses during their relationship and after separation, if bought with family property. Both spouses are presumed to be equally entitled to share in family property. See "excluded property.", excluded property, and family debt.

All property owned by either or both spouses at the date of separation is family property unless it is excluded property. Family property includes things like real propertyA parcel of land and the buildings on that land. See "chattel," "ownership" and "possession.", 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 owned before the date of marriage or the date the spouses began living together, whichever is earlier, plus certain kinds of property acquired during the spouses' relationship, including:

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

Excluded property is presumed to remain the property of the spouse who owns it, but the increase in value of the excluded property becomes family property and is shared.

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 is the date when spouses 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 marriageA legal relationship between two persons, whether of the same or opposite genders, that is solemnized by a marriage commissioner or licenced religious official and gives rise to certain mutual rights, benefits and obligations. See also "conjugal rights," "consortium" and "marriage, validity of.".

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, some 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 both 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 one 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 residenceThe geographic place where a person permanently lives. This is different from a person's "domicile" in that a person's residence is more fixed and less changeable in nature. A person's residence can also have an impact on a court's authority to hear and decide a legal action. See "domicile" and "jurisdiction.", and
(b) the court may consider, as evidenceFacts or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay," and "testimony." 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 should 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, in 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 normally entitled to keep the excluded property he or she owned when the relationship began. 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 each owned 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 that 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,
  • mortgageThe conditional transfer of the title to real property by an owner to another person in return for money given as a loan, while retaining possession of the property. The party to whom title is given, the "mortgagee," usually a bank, is allowed to register the title of the property in his or her name if the person taking the loan, the "mortgagor," fails to make the required payments. See "encumbrance" and "real property." and line of credit statements for the period that 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 Kelley Blue Book estimated values for vehicles. Boats and trailers may need to be specially valued by a dealer. It is important to note that you cannot exclude the value of the property calculated from the start of the relationship. For example, let's assume one partyIn law, a person named as an applicant, claimant, respondent or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant." owned a car worth $20,000 at the beginning of the relationship. Say it is only worth $10,000 at the time of separation. That party gets to keep the car itself, but does not get $20,000 worth of property out of family property. If the car was traded in towards the purchase of a second car during the relationship, however, the trade-in value would be excluded property.

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.

For information on how to share CPP credits see How Do I Divide Our CPP Pensions after We're Divorced? It's located in the How Do I? part of this resource in the Miscellaneous section.

Excluded property

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

  • gifts from a third partyA person named in a court proceeding or joined to a proceeding who is neither the claimant nor the respondent. A third party may be joined to a proceeding where the respondent believes that the person has or shares some responsibility for the cause of action. See "action," "cause of action" and "party.",
  • inheritances,
  • certain court awards and settlements,
  • certain insurance payments, and
  • property held in trustA phrase describing how property is held by one person for the benefit of another person who is ultimately entitled to the use or proceeds of sale of that property. Money held ''in trust'' is held in a lawyer's bank account on the lawyer’s promise not to use that money except as may be agreed., providing that the spouse didn't put the property into the trustIn law, a form of possession of property in which a "trustee" keeps and manages property for the benefit of another person, the "beneficiary." The trustee holds the property ''in trust'' for the beneficiary. See "constructive trust," "ownership," "possession" and "resulting 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 costsA calculation of the allowable legal expenses of a party to a court proceeding, as determined by the Supreme Court Family Rules. The party who is most successful in a court proceeding is usually awarded their "costs" of the proceeding. See "account, "bill of costs," "certificate of costs," and "lawyer's fees.". 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. 3, described above, cannot make a claimThe assertion of a legal right to an order or to a thing; the remedy or relief sought by a party to a court proceeding. 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 lawThe legal principle under which courts are bound to follow the principles established by previous courts in similar cases dealing with similar facts. The system of justice used in non-criminal cases in all provinces and territories except Quebec..

Jointly-owned assets

Where a couple are both on the titleIn law, a document demonstrating ownership of a thing. See "ownership." of an asset, whether the family homeIn family law, the dwelling occupied by a family as their primary residence. See "family property" and "real property.", a car or a bank accountIn law, a lawyer's bill to his or her client or a statement; one person's recollection of events., 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 proceedingA legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit" or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order. for either:

  1. an order for the saleAn agreement to transfer the ownership of property from one person to another in exchange for the reciprocal transfer of something else, usually money. See "agreement." 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 landReal property; a parcel of real property and the buildings upon it. See also "chattel," "ownership" and "possession." may be compelled to partitionIn law, the division of the ownership of a piece of real property between two or more people. See "real property." or sell the land, or a part of it as provided in this Act.
(2) Subsection (1) applies whether the estateThe personal property and real property that a person owns or in which he or she has an interest, usually in connection with the prospect or event of the person's death. 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 who is not a spouse 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 beneficiaryA person for whom a trustee holds a trust; the recipient or intended recipient of property given in a will. See "heir," and "trust." 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 trustIn family law, the finding by a court that a person holds a portion of his or her assets for the benefit of the other party without an express agreement to that effect between the parties. See "resulting trust" and "trust.",
  • an express trust, and
  • a resulting trustIn family law, the finding by a court that a party holds all or a part of his her property in trust for someone else as a result of the parties' intention to make a trust; a trust relationship inferred by operation of law. See "constructive trust" and "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 lawyerA person licensed to practice law in a particular jurisdiction. See "barrister and solicitor." 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 caseIn law, a court proceeding; a lawsuit; an action; a cause of action; a claim. Also the historic decisions of the court. See "action," "case law, " "court proceeding," and "precedent.", 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 claimantThe person who starts a court proceeding seeking an order for specific remedy or relief against another person, the respondent. See "action" and "respondent.", is asking for compensation for his or her beneficial interest in the property owned by the respondentThe person against whom a claim has been brought by Notice of Family Claim. See “application” and “Notice of Family Claim.", 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 CanadaThe highest level of court in Canada. This court hears appeals from the decisions of the Federal Court of Appeal and the provincial courts of appeal, including the Court of Appeal for British Columbia. There is no court to appeal to beyond this court. See "Court of Appeal" and "Supreme Court."'s decisionIn law, a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a judgment; the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as his or her findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," and "findings of fact." in the 1980 case of Pettkus v. Becker, [1980] 2 S.C.R. 834, one of the most important cases on constructive trusts, the court will impose a trust on a respondent where the claimant is able to show that the respondent has been unjustly enriched as a result of the claimant's labour or other services. 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 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, he or she will have established that the respondent was unjustly enriched by 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 2011 case called 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:

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.
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 or bookkeeper 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 handsome 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 enrichmentMoney, services or other benefits unfairly received by a person at a corresponding or loss to another person. See "constructive trust." has been found, the court must determine what the appropriate remedy would be to compensate the applicantA party who brings an application to the court for a specific remedy or relief. Usually refers to the party making an interim application, but in the Provincial Court can mean the person who starts a court proceeding. See also "court proceeding," "application respondent" and "interim application." 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 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.

Again, trust claims are complex and the case lawThe law as is established and developed by the decisions made in each court proceeding. See "common 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.

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 transferIn law, the act of an owner of a thing giving ownership of that thing to another person, in exchange for money or other property in the case of a sale or in exchange for other rights in the case of a family law agreement. See "family law agreements," "ownership" and "sale." 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 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 part of the family property. At first glance, this seems like a fair, equal split of the family property, which together comes 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 that 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 an extra amount 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 that 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. Your bank or credit union can provide you with the form to do this.

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 AuthorityThe provincial government agency responsible for maintaining written records of the ownership of real property in the province, together with a record of the encumbrances which may be registered against a property. See "Land Title Act" and "real property.", and no tax will be payable on the transfer.

Resources and links

Legislation

Links

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