Difference between revisions of "Dividing Property and Debt in Family Law Matters"
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#the cost of expert's reports, like needs of the child assessments under s. 211, property assessments or business valuation. | #the cost of expert's reports, like needs of the child assessments under s. 211, property assessments or business valuation. | ||
===== | =====Use of Property===== | ||
Under s. 90, the court can make an order that one spouse have the exclusive right to live in the family home and use the property kept at the family home. | Under s. 90, the court can make an order that one spouse have the exclusive right to live in the family home and use the property kept at the family home. The court will make these orders if it's no longer possible for the spouses to share the home and if the convenience to the spouse who's staying in the home outweighs the inconvenience to the spouse who's being made to leave. | ||
Under s. 91(2)(a), the court make make other orders "for the possession, delivery, safekeeping and preservation of property". This might include orders that a spouse must return personal property to the other spouse or that a spouse will have the sole use of personal property, like a car that's necessary to go to work or take the kids to school. | |||
=====Financial Restraining Orders===== | |||
Under s. 91(1) and (2), the court can make some really important orders that are intended to freeze the any property that is at issue in the court proceeding, including family property and property that might be excluded property, until the property is finally divided by an order or an agreement. | |||
<blockquote><tt>(1) On application by a spouse, the Supreme Court must make an order restraining the other spouse from disposing of any property at issue under this Part or Part 6 [Pension Division] until or unless the other spouse establishes that a claim made under this Part or Part 6 will not be defeated or adversely affected by the disposal of the property.</tt></blockquote> | |||
<blockquote><tt>(2) The Supreme Court may make one or more of the following orders:</tt></blockquote> | |||
<blockquote><blockquote><tt>(b) for the purpose of protecting the applicant's interest in property from being defeated or adversely affected,</tt></blockquote></blockquote> | |||
<blockquote><blockquote><blockquote><tt>(i) prohibiting the other spouse from disposing of, transferring, converting, or exchanging into another form, property in which the applicant may have an interest, or</tt></blockquote></blockquote></blockquote> | |||
<blockquote><blockquote><blockquote><tt>(ii) vesting all or a portion of property in, or in trust for, the applicant.</tt></blockquote></blockquote></blockquote> | |||
A couple of important points about this section deserve mention. | |||
#the order ''must'' be made when a spouse asks for it, unless the other spouse can show that there are enough assets that the claim to the property won't be frustrated if he or she happens to sell some of the assets; | |||
#the order can be made without giving the other spouse notice of the application; and, | |||
#the order includes not just "family property" but all property in dispute, including property that might be excluded property. | |||
This is a powerful order and you should probably think about asking for this order if you are asking for a share of property. This is just a matter of being prudent. You may have no cause to believe that your spouse would do something that would jeopardize your interests, but it almost always pays to be cautious. | |||
Rule 12-4 of the Supreme Court Family Rules gives the court the authority to make a general restraining order, called an ''injunction'', to require someone to do something or not do something. The same authority is given to the court by s. 39 of the provincial ''Law and Equity Act''. See the previous page, ______ , for more information about protecting property. | |||
====Dividing Property and Debt Equally==== | ====Dividing Property and Debt Equally==== | ||
Under s. 81(a) of the ''Family Law Act'', "spouses are both entitled to family property and responsible for family debt, regardless of their respective use or contribution". | |||
Section 84, says what family property is: | |||
<blockquote><tt>(1) Subject to section 85 [excluded property], family property is all real property and personal property as follows:</tt></blockquote> | |||
<blockquote><blockquote><tt>(a) on the date the spouses separate, property</tt></blockquote></blockquote> | |||
<blockquote><blockquote><blockquote><tt>(i) that is owned by at least one spouse, or</tt></blockquote></blockquote></blockquote> | |||
<blockquote><blockquote><blockquote><tt>(ii) in which at least one spouse has a beneficial interest;</tt></blockquote></blockquote></blockquote> | |||
<blockquote><blockquote><tt>(b) after separation, property</tt></blockquote></blockquote> | |||
<blockquote><blockquote><blockquote><tt>(i) acquired by at least one spouse, or</tt></blockquote></blockquote></blockquote> | |||
<blockquote><blockquote><blockquote><tt>(ii) in which at least one spouse acquires a beneficial interest,</tt></blockquote></blockquote></blockquote> | |||
<blockquote><blockquote><tt>that is derived from the property referred to in paragraph (a) or from the disposition of that property.</tt></blockquote></blockquote> | |||
<blockquote><tt>(2) Without limiting subsection (1), family property includes the following:</tt></blockquote> | |||
<blockquote><blockquote><tt>(a) a share or an interest in a corporation;</tt></blockquote></blockquote> | |||
<blockquote><blockquote><tt>(b) an interest in a partnership, an association, an organization, a business or a venture;</tt></blockquote></blockquote> | |||
<blockquote><blockquote><tt>(c) property owing to a spouse</tt></blockquote></blockquote> | |||
<blockquote><blockquote><blockquote><tt>(i) as a refund, including an income tax refund, or</tt></blockquote></blockquote></blockquote> | |||
<blockquote><blockquote><blockquote><tt>(ii) in return for the provision of a good or service;</tt></blockquote></blockquote></blockquote> | |||
<blockquote><blockquote><tt>(d) money of a spouse in an account with a financial institution;</tt></blockquote></blockquote> | |||
<blockquote><blockquote><tt>(e) a spouse's entitlement under an annuity, a pension, a retirement savings plan or an income plan;</tt></blockquote></blockquote> | |||
<blockquote><blockquote><tt>(f) property, other than property to which subsection (3) applies, that a spouse disposes of after the relationship between the spouses began, but over which the spouse retains authority, to be exercised alone or with another person, to require its return or to direct its use or further disposition in any way;</tt></blockquote></blockquote> | |||
<blockquote><blockquote><tt>(g) the amount by which the value of excluded property has increased since the later of the date</tt></blockquote></blockquote> | |||
<blockquote><blockquote><blockquote><tt>(i) the relationship between the spouses began, or</tt></blockquote></blockquote></blockquote> | |||
<blockquote><blockquote><blockquote><tt>(ii) the excluded property was acquired.</tt></blockquote></blockquote></blockquote> | |||
====Dividing Property and Debt Unequally==== | ====Dividing Property and Debt Unequally==== | ||