Calgary Unequal Matrimonial Property Division 403-444-5503
Our new Calgary Unequal Matrimonial Property Division office is now open on the 10th Floor of Banker’s Hall in Calgary and our phone number is 403-444-5503. Calgary and the rest of Alberta has suffered some financial setbacks to their economy and stocks and real estate values there have taken a hit. In days of fast rising property values claims for unequal division were common but is the same true now when values have declined? What is the test for a Calgary Unequal Matrimonial Property Division case?
What Happens When Calgary Matrimonial Property Declines In Value After Separation?
In times where stocks and real estate are rocketing upward Calgary Unequal Matrimonial Property Division cases can involve a claim by one spouse to unequal division of matrimonial property or the gain on exempt property. But what happens when a Calgary Unequal Matrimonial Property Division case involves assets that have been disposed of. Our Calgary Unequal Matrimonial Property Division lawyers handle cases where an asset has declined due to stock market or real estate market reversals and declines? Sometimes in these cases a spouse involved in a Calgary Unequal Matrimonial Property Division dispute will be unhappy with the lower value and argue the spouse who controlled the asset failed to manage that asset properly.
Dissipation and Unequal Distribution of matrimonial Property Where Stocks Declined in Value by $1,000,000!
In a recent Calgary Matrimonial Unequal Property Division case involving shares owned by a husband, the wife appealed a trial decision that did not unequally divide matrimonial property in her favour where stocks had plummeted post separation. In Fleming v Fleming, 2016 ABCA 88 (CanLII) the Alberta Court of Appeal said there was no evidence the husband tried to lose money on the stocks or dissipate the assets by not selling them before they went down in value.
[28] Finally, the appellant objects to the trial judge’s conclusion that she failed to prove the respondent’s dissipation of two investment assets: the Qtrade portfolio and Canadian Rockport Homes International Inc shares. The record reflects that, post-separation, the value of the Qtrade portfolio declined from roughly $1.2 million in 2010 to just under $200,000 at the date of valuation in 2013. The Rockport Homes shares were valued at $20,000 in 2010 and were worthless by 2013. Based on this drop in value alone, the appellant asserts that the respondent dissipated these matrimonial assets post-separation, which justifies an unequal division of matrimonial property in her favour.
[29] The trial judge found that the respondent did not dissipate these two assets. On appeal, the appellant’s argument is that the trial judge’s finding was a palpable error, given the evidence of the decline in value. The appellant relies on Hennessey v Hennessey, 2005 ABQB 883 (CanLII) at paras 24 and 82,[2005] AJ No 1703, where the Court stated that negligent or careless use of matrimonial property suffices for dissipation, and the standard of care owed by a spouse investing matrimonial property is that of a prudent manager.
[30] Section 7(4) of the Matrimonial Property Act, RSA 2000, c M-8 presumes an equal division of non-exempt matrimonial property unless that presumption can be rebutted by demonstrating the existence of one or more of the factors in section 8: Hodgson v Hodgson, 2005 ABCA 13 (CanLII) at para 21, 40 Alta LR (4th) 212; Kretschmer v Terrigno, 2012 ABCA 345 (CanLII) at para 45, 539 AR 212. Thus, the party arguing for an unequal distribution must prove that the other spouse dissipated matrimonial assets.
[31] In our view, there is not sufficient evidence on the record to determine whether the respondent acted as an imprudent manager or careless investor. As such, the trial judge made no error in concluding that dissipation was not made out on the facts before him. The market conditions affected both parties’ investments, resulting in a decline in value. The respondent testified that he was in regular contact with his stockbroker regarding the performance of his investments, but there is no evidence of what advice, if any, the respondent received regarding these investments and whether he was able to sell them all. Absent evidence of intentional waste and negligent or careless use of matrimonial property, dissipation is not made out.
What Sections of the Matrimonial Property Act Govern a Calgary Unequal Matrimonial Property Division Case?
Our Matrimonial Property Act deals with matrimonial property and exempt property.
Here are two key sections you need to be aware of:
7(1) The Court may, in accordance with this section, make a distribution between the spouses of all the property owned by both spouses and by each of them.
(2) If the property is
(a) property acquired by a spouse by gift from a third party,
(b) property acquired by a spouse by inheritance,
(c) property acquired by a spouse before the marriage,
(d) an award or settlement for damages in tort in favour of a spouse, unless the award or settlement is compensation for a loss to both spouses, or
(e) the proceeds of an insurance policy that is not insurance in respect of property, unless the proceeds are compensation for a loss to both spouses,
the market value of that property at the time of marriage or on the date on which the property was acquired by the spouse, whichever is later, is exempted from a distribution under this section.
Matters to be considered
8 The matters to be taken into consideration in making a distribution under section 7 are the following:
(a) the contribution made by each spouse to the marriage and to the welfare of the family, including any contribution made as a homemaker or parent;
(b) the contribution, whether financial or in some other form, made by a spouse directly or indirectly to the acquisition, conservation, improvement, operation or management of a business, farm, enterprise or undertaking owned or operated by one or both spouses or by one or both spouses and any other person;
(c) the contribution, whether financial or in some other form, made directly or indirectly by or on behalf of a spouse to the acquisition, conservation or improvement of the property;
(d) the income, earning capacity, liabilities, obligations, property and other financial resources
(i) that each spouse had at the time of marriage, and
(ii) that each spouse has at the time of the trial;
(e) the duration of the marriage;
(f) whether the property was acquired when the spouses were living separate and apart;
(g) the terms of an oral or written agreement between the spouses;
(h) that a spouse has made
(i) a substantial gift of property to a third party, or
(ii) a transfer of property to a third party other than a bona fide purchaser for value;
(i) a previous distribution of property between the spouses by gift, agreement or matrimonial property order;
(j) a prior order made by a court;
(k) a tax liability that may be incurred by a spouse as a result of the transfer or sale of property;
(l) that a spouse has dissipated property to the detriment of the other spouse;
(m) any fact or circumstance that is relevant.
Calgary Unequal Matrimonial Property Division is stressful. It pays to hire an experienced Calgary Unequal Matrimonial Property Division lawyer to guide you to a successful resolution of your case.
Call Lorne N. MacLean, QC today to get started on a solution and a solid relationship exit strategy. Call 403-444-5503 now to book an appointment to discuss Calgary Unequal Matrimonial Property Division. Our firm handles medium to high net worth relationship breakdown cases as well as complex child custody disputes.
