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Difference between revisions of "Assets of Couples (3:IX)"
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{{REVIEWED LSLAP | date= | {{REVIEWED LSLAP | date= July 12, 2023}} | ||
{{LSLAP Manual TOC|expanded = family}} | {{LSLAP Manual TOC|expanded = family}} | ||
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=== 3. Supreme Court Family Rules [SCFR] === | === 3. Supreme Court Family Rules [SCFR] === | ||
The Supreme Court Family Rules contain | The Supreme Court Family Rules contain several procedural provisions for dealing with property. | ||
For example, Rule 12-1 allows for the detention, preservation, and recovery of property that is the subject matter of a family law case. Rule 12-4 allows for a pre-trial injunction. Rule 15-8 permits the Court to order a sale of property if it appears necessary and expedient that the property be sold. Where a dispute arises, an application can be made to the Supreme Court to settle the matter, but clients should be advised that a court action is costly | For example, Rule 12-1 allows for the detention, preservation, and recovery of property that is the subject matter of a family law case. Rule 12-4 allows for a pre-trial injunction. Rule 15-8 permits the Court to order a sale of property if it appears necessary and expedient that the property be sold. Where a dispute arises, an application can be made to the Supreme Court to settle the matter, but clients should be advised that a court action is costly. Additionally, a negotiated settlement is generally to their advantage because courts have wide discretion to distribute family property. For example, a court could order the sale of property at a time when the housing market is poor, resulting in a low sale price. Sometimes, a spouse should consider selling their interest in a property to the other spouse. | ||
== C. Types of Assets == | == C. Types of Assets == | ||
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Rights under an annuity, pension, home ownership, or registered retirement savings plan are considered family property, including each party’s Canadian Pension Plan (CPP) credits. | Rights under an annuity, pension, home ownership, or registered retirement savings plan are considered family property, including each party’s Canadian Pension Plan (CPP) credits. | ||
The division of pensions is clarified in the FLA. Unless the pension is proven to be excluded property, it will be divisible. The presumption is equal division unless it would be significantly unfair based on the considerations in s 95 of the FLA. If a spouse is to receive benefits at a later date, they may become a limited member of the plan. If they cease to be a limited member then their share is transferred. A spouse can generally either choose to have a lump-sum payment of their share, to have a separate pension payment issued to them (s 115), or a hybrid of both (s 116). This decision may be made at any time (either before or after the pension commences) but the division will only occur after the pension has commenced (s 115). | The division of pensions is clarified in the FLA. Unless the pension is proven to be excluded property, it will be divisible. The presumption is equal division unless it would be significantly unfair based on the considerations in s 95 of the FLA. If a spouse is to receive benefits at a later date, they may become a limited member of the plan. If they cease to be a limited member then their share is transferred. A spouse can generally either choose to have a lump-sum payment of their share, to have a separate pension payment issued to them (s 115), or a hybrid of both (s 116). This decision may be made at any time (either before or after the pension commences) but the division itself will only occur after the pension has commenced (s 115). | ||
If an agreement or order regarding the benefits of a pension provides that the benefits are not divisible or is silent on entitlement to benefits, a member and a spouse may agree to have benefits divided before the earliest of the following: | If an agreement or order regarding the benefits of a pension provides that the benefits are not divisible or is silent on entitlement to benefits, a member and a spouse may agree to have benefits divided before the earliest of the following: | ||
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This Act applies where a party has elected not to commence legal proceedings but needs to protect their interest in real property. It provides an alternative to a Certificate of Pending Litigation for a married spouse (not common law) where the “property” was the “matrimonial home”. The Act allows a charge to be placed on land that will prevent disposition of the property without the written consent of the applicant for the charge (refer to the Land (Spouse Protection) Act and the Land Title Act for the registration procedure). Note that this only applies while the parties are legally married. The charge may be struck out on the death of, or final divorce from, the applicant. | This Act applies where a party has elected not to commence legal proceedings but needs to protect their interest in real property. It provides an alternative to a Certificate of Pending Litigation for a married spouse (not common law) where the “property” was the “matrimonial home”. The Act allows a charge to be placed on land that will prevent disposition of the property without the written consent of the applicant for the charge (refer to the Land (Spouse Protection) Act and the Land Title Act for the registration procedure). Note that this only applies while the parties are legally married. The charge may be struck out on the death of, or final divorce from, the applicant. | ||
Registration of a charge by one spouse under the Land (Spouse Protection) Act prevents the other spouse from selling or encumbering their share but is not protection against a creditor who could obtain an order for sale of the house. So long as one is legally married to their spouse, one may file against the property without the other spouse’s notice or consent, | Registration of a charge by one spouse under the Land (Spouse Protection) Act prevents the other spouse from selling or encumbering their share but is not protection against a creditor who could obtain an order for sale of the house. So long as one is legally married to their spouse, one may file against the property without the other spouse’s notice or consent, to prevent the transfer of the property. | ||
==== c) Registration of a Notice Under the Land Title Act ==== | ==== c) Registration of a Notice Under the Land Title Act ==== | ||
