Difference between revisions of "Assets of Couples (3:IX)"
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=== 4. Real Property === | === 4. Real Property === | ||
It is often necessary to take early steps to secure the title to real property when there is a separation. In fact, it is recommended for clients to file as soon as possible to avoid missing any limitation dates and preserve their claim. This is particularly so where property is registered in the name of only one spouse, and there is a risk of that party disposing of or encumbering the property, or where judgments are likely to be registered against one party’s interest, which might prejudice the other party. Under section 91 of the ''FLA'', one may request an automatic restraining order to prevent the sale of family | It is often necessary to take early steps to secure the title to real property when there is a separation. In fact, it is recommended for clients to file as soon as possible to avoid missing any limitation dates and preserve their claim. This is particularly so where property is registered in the name of only one spouse, and there is a risk of that party disposing of or encumbering the property, or where judgments are likely to be registered against one party’s interest, which might prejudice the other party. Under section 91 of the ''FLA'' and Rules 12-1 and 12-4 of the ''Supreme Court Family Rules'', one may request an automatic restraining order to prevent the sale or disposal of family property including real property. There are several ways of protecting a spouse’s interest. | ||
==== a) Certificates of Pending Litigation and Caveats ==== | ==== a) Certificates of Pending Litigation and Caveats ==== | ||
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A former spouse is considered a “spouse” within the meaning of the FRA(s 1), ''FLA'' (s 3) for the purpose of proceedings to enforce or vary an existing order. However, where an entirely new order is sought, the parties cease to be “spouses” within the meaning of the Act after 2 years has passed since the order granting the divorce was made. This distinction has engendered a debate as to whether there is a limitation period for the redistribution of property “between spouses” under the FRA. See ''Staires v Staires'' (1991), 34 R.F.L. (3d) 376 (BCS.C.) and ''Tatlock v Tatlock'' (1992), 71 BCLR (2d) 194 (SC). The Supreme Court of Canada partially addressed the issue in ''Stein v Stein'', [2008] 2 SCR 263, 2008 SCC 35, para. 12: “...the [''Family Relations Act''] does not place any temporal limits on the division of assets. Nor does it state that once assets have been subject to an initial division, a reapportionment cannot occur at some point in the future”. | A former spouse is considered a “spouse” within the meaning of the FRA(s 1), ''FLA'' (s 3) for the purpose of proceedings to enforce or vary an existing order. However, where an entirely new order is sought, the parties cease to be “spouses” within the meaning of the Act after 2 years has passed since the order granting the divorce was made. This distinction has engendered a debate as to whether there is a limitation period for the redistribution of property “between spouses” under the FRA. See ''Staires v Staires'' (1991), 34 R.F.L. (3d) 376 (BCS.C.) and ''Tatlock v Tatlock'' (1992), 71 BCLR (2d) 194 (SC). The Supreme Court of Canada partially addressed the issue in ''Stein v Stein'', [2008] 2 SCR 263, 2008 SCC 35, para. 12: “...the [''Family Relations Act''] does not place any temporal limits on the division of assets. Nor does it state that once assets have been subject to an initial division, a reapportionment cannot occur at some point in the future”. | ||
'''The ''FLA'' allows common law spouses only two years to apply for property division and spousal support after the separation date (s 198). The limitation period may be suspended for both married and unmarried spouses if they were engaged in family dispute resolution with a family dispute resolution professional.''' | |||
Under s 198(3), a spouse may make an application to set aside an order or agreement for property division no later than 2 years after the spouse first discovered, or reasonably ought to have discovered, the grounds for making the application. | |||
Under the | Under the ''Limitations Act'', there is no limitation date for claims on arrears of spousal and child support payments. Once a distribution scheme for family property is set, either by the Court or by agreement, it is always enforceable subject to the relevant case law. | ||
==== f) Interim Relief ==== | ==== f) Interim Relief ==== | ||
A court may order temporary occupation and possession of the family residence and its contents by just one spouse ( | A court may order temporary exclusive occupation and possession of the family residence and its contents by just one spouse (''FLA'' s 90). | ||
==== g) Business Assets ==== | |||
Under the FLA, business property is no longer singled out as it was in the FRA. Business property is family property unless it is excluded property under the FLA. | |||
=== 5. Business Assets === | === 5. Business Assets === | ||