The Fishman Beley Family Law Primer - Family Law 101
Sharing Family Property on Separation
On separation, the value of property separately owned by each of the parties to a marriage or common-law partnership (after three years of cohabitation, one year of cohabitation if the parties are unmarried or registration with Vital Statistics – currently a $100 cost), less the value of their debts, on the date of separation are shared between the parties by an equalization process.
Assets and debts that are owned jointly are treated somewhat differently. Note that the property itself, or ownership, is not shared or physically divided.
Notably, jointly held property is dealt with under The Law of Property Act, which may allow a party to require the property be sold and the net proceeds divided equally on a current basis, rather than being stuck with the estimated value as of the date of separation. This may be a matter of some importance as, say, a home owned by one party on the date of separation goes up or down in value during the time it takes to have the matter settled, one of the parties will be happy and the other unhappy with the gain or loss.
For those common-law relationships which don’t last the three years, or one year if they are unmarried, relief may still be found in the case law of trusts or unjust enrichment.
While each province has a property regime on separation, each is different from the others, some in major ways. Do not rely on the cases from other jurisdictions without careful analysis.
NOTE: claims by common-law partners must be made within 3 years of the cessation of cohabitation, or, in the case of death, 6 months after probate or letters of administration have been granied.
Contrary to common understanding, the FPA does not provide for the actual division of things or the equal sharing of things. It has no effect on ownership, before or after separation.
The FPA provides for a regime of "deferred sharing", that is, each spouse will account for the shareable values of their assets and liabilities as of the date of separation. The spouse or partner with the greater net worth (assets less liabilities) will then be required to equalize the difference in net values. This amount is called an “equalization payment”.
Assume the first party has $100,000 in shareable assets and $20,000 in shareable debts, or $80,000 in net property, and that the other has $50,000 in assets and $5,000 in debt, or $45,000 in net property. The difference in their net property would be ($80,000 - $45,000 =) $35,000. To equalize, half of the difference, or $17,500 would be paid by the first party to the second, which would leave each with $62,500 in net assets.
Common Law of Trusts or Unjust Enrichment
Where the provisions of the FPA or The Law of Property Act do not necessarily apply, a remedy may still be available through the operation of the law of trusts or Unjust Enrichment. This area of the law is complex and rarely used. See the Supreme Court of Canada case of Kerr v. Baranow for an excellent review and summary of the current law.
An example of the kind of situation in which resort must be had to these concepts might be where a common-law couple has lived together for less than the required three years before separation, yet property has been acquired that ought to be shared.
The general principles of trust can be invoked where a promise has been made, or money advanced, or “sweat equity” poured in on the understanding, for examples, that the property will be held in the name of one party when in fact the parties have agreed that the other one is the real, or beneficial owner, of the property.
Unjust enrichment arises where without a particular legal reason one party has been enriched and the other deprived by the facts of ownership, such as where the non-titled party has contributed money or monies’ worth to the acquisition of the asset, perhaps on the understanding or expectation of a future reward or sharing of the asset.
Fair Market Value
The accounting of Family Property on separation deals with the value of the assets and debts as of the date of separation. This date can be agreed by the parties or set by the court.
Value is "fair market value" of the asset or debt in question as of the date of separation. Thus, the value of the car or household furniture, for examples, is not what you paid for it or what it would cost you to replace it now, but, more probably, the "used", "auction" or "yard sale" value that it would have fetched on that date.
The definition of value presumes a willing seller and a willing buyer, neither being compelled to act, and neither having any special knowledge or market.
Some assets have no ready market and their valuation can be difficult to ascertain, requiring expert evidence. The value of a business, commercial goodwill or professional practice is often vexing to ascertain without the assistance of forensic accountants or qualified valuators. Sometimes the fair market value might be discounted, for example, for disposition costs or tax implications.
Debts and Liabilities
While debts and liabilities are taken into account in determining each party’s net property for the accounting, where the total value of a party’s debts exceeds the total value of his or her assets, it takes a special application to the court to attempt to force the other party to share that excess.
This is sometimes called a “negative accounting”. One example of a situation in which a court might allow a negative accounting is where the debts were unknown to the other party or were accrued by gambling or criminal behaviour.
Assets Exempt from Sharing
Some assets may be exempt from the accounting.
- Joint Assets
Assets which are previously shared between the parties, such as during a prior separation or “already shared”, such as the jointly owned family home or other jointly help property, are not covered by the FPA.
Issues respecting the jointly held home must be dealt with under The Law of Property Act. The main difference in dealing with jointly held property is that it will be valued on the date of disposition, that is, “current value”, not the date of separation value which may have been months or years earlier, that is shared. Where one party has had occupation of the joint property after separation, the party who has been out of possession might bring forward a claim for “occupation rent” to seek compensation for the loss of use of their equity during period, usually a claim for half the rental value of the property. Counter claims for expenses or for the paydown of a mortgage or the payment of costs due from the joint owners for real property taxes and insurance may follow. These claims can be complicated by issues of spousal support which might have taken into account the use of the property by the claimant or recipient of support.
- Gifts and Inheritances
Gifts and inheritances, from third parties, are exempt from sharing, unless it can be shown there was an intention by the donor to benefit both spouses. Gifts between the parties are not excluded.
- Prior-acquired Assets
Prior-acquired assets, that is, assets acquired before the relationship, or those acquired during a period of separation, are shared only to the extent they have increased, or decreased, in value during the period(s) of cohabitation. An asset acquired in "contemplation" of the relationship will be shareable.
Conversion of Assets
Assets which may be exempt because they were acquired as gifts or inheritance, or because they were acquired prior to the relationship, might still be subject to sharing. When such an asset is sold or otherwise disposed, if the proceeds of disposition are used to acquire a “family asset”, as that term is defined, then the newly acquired asset will be shareable.
This can be a trap for the unwary. For example, a party who owned a house before the relationship may decide to sell it during the relationship. If a new family home is purchased with the proceeds of sale, that new home will be sharable and there will be no credit for the prior-acquired asset. If the owner of the prior-acquired home had used the proceeds to purchase an investment property that investment would remain exempt. In the same way, an inheritance, which might otherwise be exempt from sharing, will be lost if used to buy a family car or is used to pay off the mortgage, for examples, then those amounts will be subjected to sharing.
Pensions, RRSPs and Canada Pension Plan
Pensions are a complicated subject and need to be approached with care and often expert actuarial advice. Pensions, Registered Retirement Savings Plans (RRSP), and Canada Pension Plan (CPP) credits are all family property.
The Pensions Benefits Act (PBA) governs pensions that are sited in Manitoba. It provides for a mandatory sharing of the pension on marriage or common-law relationship breakdown, unless the parties agree otherwise.
Pensions which are “resident” in Manitoba are covered under The Pension Benefits Act (PBA). They are not capable of very flexible treatment. Pensions, which may be federally administered or from other provinces, are open to variance in how they might be dealt with.
Under the PBA, where the pension is divided at source, the non-pensioner spouse will have to have the credits rolled into a "locked-in" pension plan (LIRA) which cannot be accessed before retirement age, except in particular circumstances. In cases where the parties are members of the same plan, it is possible to have the credits transferred within the plan.
If the parties are able to agree that the pension won’t be divided, if they separated prior to Ocotber 1, 2021, they must make their agreement under strict conditions that require they obtain a pension administrator’s statement of the value of credits to be divided and that they enter a statutory form of agreement in which each acknowledges the receipt of independent legal advice. They must sign the agreement before their separate lawyers who will sign as witnesses. Separations after October 1, 2021 are subject to less stringent requirements for the waiver of an interest in the pension.
- George Formula
For pensions not covered by the PBA, we often rely upon a formula, called the George Formula, named after a landmark Manitoba case, to effect a distribution of a pension as and when it is received.
That formula is based upon the proportion of time during which the pension accrued and during which the parties cohabited. The formula is usually surrounded in the court order or parties’ agreement with a bewildering array of clauses to explain and protect the process, as it does not bind the pension plan administration, but only the parties and their estates. The formula itself looks like this:
Any interest in any benefit payable, by or from the pensioner's pension plan, at any time in the future to him/her, whether during his/her lifetime or upon death, shall be shared with the non-pensioner party such that the portion to which she/he is entitled is determined by the following formula:
D = 1/2 x (A / B) x C, where:
A = the number of months of married cohabitation during which pension contributions were made
B = the number of months during which pension contributions were and will be made
C = the gross amount of pension payable to the pensioner
D = the gross amount payable to the non-pensioner spouse
- Federal Pensions
Some pensions are covered by federal statutes such as the Pension Benefits Standards Act or the Pension Divisions Act. These statues are considerably more flexible than the PBA.
- Registered Retirement Savings Plans (RRSP)
RRSP are a special class of asset. Because they carry an inherent tax liability upon deregistration as “income”, parties are naturally reluctant to have them taken at face value. The holder of the RRSP will normally want it discounted for his or her presumed marginal tax rate, but unless the assumption is accepted that they were cashed in on the date of separation, it might be unfair to discount them at the higher rate that might pertain on the valuation date, as opposed to at retirement age when income overall would be expected to be lower and, therefore, the tax rate lower as well. Manitoba case law seems to favour a discount of about 33%. It is possible to avoid this discounting calculation as income tax law allows the tax-free transfer between spouses/common-law partners of RRSP on relationship or marriage breakdown. No tax is payable until the RRSP is cashed in. Thus, an equalization of RRSP separate from consideration of the other assets and liabilities, is generally seen as the fairest way to deal with that kind of asset, but the court has no power to require it.
- Canada Pension Plan (CPP)
CPP credits earned during the marriage and common-law relationship can be equalized on separation. They cannot be waived by agreement or court order in Manitoba and are, therefore, treated separately. In Manitoba, when the court grants a divorce, pamphlets respecting each parties’ right to have CPP credits earned by each during the period of cohabitation equalized are distributed.
- CPP LIMITATION FOR COMMON-LAW COUPLES
NOTE: An important distinction in the way that married and common-law couples are treated by the CPP splitting process is that in the case of common-law relationship breakdown, the application must be perfected within 48 months of the date they started living apart, unless the former partner is still alive and agrees in writing to waive the 48-month time limit.
Costs of disposition of pensions, RRSP and other assets with inherent costs of disposition are worthy of special attention. It is difficult to predict the future tax costs to an individual. As noted above, the courts have typically chosen arbitrary discounts of about 33% for RRSP and pensions.
The disposition costs of other assets is more complex. One normally expects to pay real estate commission and legal fees on the sale of a house, or there may be tax costs inherent in the sale of a business or farm, such as recapture of depreciation, or capital gains tax, which should be taken into account. Sometimes these costs are too speculative for the court to accept, but it will do the best it can based on appropriate evidence.
Taxation on Property Transfers
Complex rules govern the transfer of property from one person to another. Under the special circumstances of marital breakdown, capital property can be transferred between spouses, by a rollover, without triggering the usual tax consequences.
This has the effect of transferring the tax consequences to the recipient of the property who is deemed to have acquired that capital property at the same cost base as the transferor had at the time of the transfer. The transferor could elect, however, not to employ the rollover and the disposition would be deemed to be at its fair market value thereby triggering a capital loss or gain, as the case may be.
In order to ensure that future gains are payable by the recipient rather than being attributed back to the transferor of the property, the parties will be required to complete an appropriate election form (s.74.5(3) of the Income Tax Act).
Given the difficulty in valuation and the complexity of the law, professional legal and accounting advice is usually required in these kinds of transactions.
While one of the parties may claim that the other has dissipated assets, the test is very difficult to meet, as the squandering of assets must be seen to be "jeopardizing of the financial security of a household". Where dissipation is found, the court may add back those assets into the accounting and may follow them into the hands of complicit third parties.
While many parties claim that there should be an unequal division of the family property, the court has only a very limited discretion in this area (s. 14 FPA) and has only varied the equality provision in a handful of cases in the last 3 decades, despite the routine claim for that relief in most petitions.
The test for “family assets” is that equality would be “grossly unfair or unconscionable”. Where the assets are “commercial assets”, the court will alter equality only where it is “clearly inequitable”. In each case the court’s exercise of its discretion is subject to a number of considerations.
Reference and Confirmation
Before the Family Property accounting can be undertaken, there must be agreement on the two important dates – the date the parties began cohabitation and the date the parties separated. If there is a dispute about either date, it must be settled prior to the first Triage meeting. The Masters of the court are tasked to make those decisions.
Property issues will firstly be addressed by the Triage Judge and for that purpose each of the parties will complete a Comparative Family Property Statement as part of their prerequisites.
If matters in issue remain, they will be dealt with as an Order for a Reference to the Master for an accounting under The Family Property Act. A "Reference" is a form of trial, which is undertaken before a Master of the court.
The accounting will be initiated by a series of forms called Summary of Assets and Liabilities which each party will file and on which the other party will respond with their respective positions respecting the inclusion, value or other issues respecting the assets and debts. Confirming documents will be attached to those forms.
Once the filings are complete the parties will meet with the Master who will undertake a series of meetings, similar to case conferencing in an attempt to resolve the issues. The unsettled issues will be heard by a Master at a reference hearing.
The Master’s report, if either party opposes it, is then referred to a Judge for "confirmation". The confirmation hearing is generally a form of appeal, that is, the judge will review the record, which will include the transcript of proceedings and exhibits filed of the hearing before the Master. Only rarely will the court hear new evidence.
Severance of Joint Title
The remedy for joint tenants who want to have the property sold is found in The Law of Property Act. Sometimes the request for sale of jointly held property will be severed from the main proceedings as, subject to a claim for sole occupancy or postponement of sale, joint owners have a right to have the property sold.
Once a court order for sale is made, the matter is referred to the Master for a Reference to set the terms and conditions of sale, and to calculate adjustments between the parties. The Master's report will then have to be confirmed by a judge.