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===Property brought into the relationship=== | ===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 | 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 they 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: | 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: | ||
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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, | 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. | ||
===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 | 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 | ||
#an order for payment in compensation for | #an order for payment in compensation for their interest in the asset. | ||
Where real property is jointly owned, it is possible to make a claim under the provincial ''[http://canlii.ca/t/848q Partition of Property Act]''. Section 2 of this act says that: | Where real property is jointly owned, it is possible to make a claim under the provincial ''[http://canlii.ca/t/848q Partition of Property Act]''. Section 2 of this act says that: | ||
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===Individually-owned assets=== | ===Individually-owned assets=== | ||
Where a person who is not a spouse believes that | Where a person who is not a spouse believes that they 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 beneficiary of that trust and should be entitled to receive compensation for | 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 beneficiary of that trust and should be entitled to receive compensation for their interest in the property under the trust. | ||
There are three kinds of trust claim that may be made: | There are three kinds of trust claim that may be made: | ||
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A resulting trust can be created in the following circumstances: | A resulting trust can be created in the following circumstances: | ||
*one party loans or gives money to the other party to allow | *one party loans or gives money to the other party to allow them to buy an asset, and the person buying the asset owns the asset in their name alone, or | ||
*one party transfers property to another without payment. | *one party transfers property to another without payment. | ||
In each case, 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 | In each case, 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 their name alone. In a court proceeding based on a resulting trust, the person making the claim, the ''claimant'', is asking for compensation for their beneficial interest in the property owned by the ''respondent'', the person against whom the claim is brought. | ||
====Unjust enrichment and constructive trusts==== | ====Unjust enrichment and constructive trusts==== | ||
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#there is no legal reason for the respondent's enrichment. | #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, | ''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 case 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''.) | (There are two other case 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''.) | ||
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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. | ||
Once an unjust enrichment has been found, the court must determine what the appropriate remedy would be to compensate the applicant for | 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' house. | ||
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*the money you get when you cash in an RRSP, | *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 | *money received by a shareholder from a company as a dividend or from the sale of their shares, | ||
*the interest you get from a loan you've made to someone else, and | *the interest you get from a loan you've made to someone else, and | ||
*the profit realized from the sale or transfer of real property that isn't the family's principle residence. | *the profit realized from the sale or transfer of real property that isn't the family's principle residence. |