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Calgary Matrimonial Property Act Lawyers handle valuation of both Calgary matrimonial property and Calgary exempt property and the division or exclusion of them is a mainstay of the Calgary high net worth family law dispute work that we do. MacLean Law’s lawyers handle cases in BC and Calgary Alberta and you can meet with us in our downtown Banker’s Hall location by clicking here.
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The recent case of CMK v GSK, 2017 ABQB 319 (CanLII) provides a quick recap and a very useful useful legal summary that our Calgary Matrimonial Property Act Lawyers feel can quickly bring our Calgary family law clients up to speed on matrimonial property division.
Calgary Matrimonial Property Act Lawyers Like New Alberta Decision
IV. MPA [How it works]
[7] The Court of Appeal in Smith v Smith, 2016 ABCA 376 (CanLII), [2016] AJ No 1238 at paras 18-19, noted that the purpose of the MPA is to fairly and equitably distribute the assets of the parties on dissolution of marriage.
[8] Section 7 of the MPA empowers the Court to distribute between the parties all of their property, except for property exempt under s 7(2). Section 7(4) establishes a presumption that the Court will distribute the non-exempt property equally between the parties, unless an unequal distribution is justified based on the factors set out in s 8. This is a recognition of the fundamental importance of marriage in society and the need to balance and weigh the financial and non-financial contributions that spouses make to a marriage. The Court has, however, discretion, taking into account the s 8 factors, as to the distribution of matrimonial property.
[9] The date of valuation for the purposes of the division is, generally speaking, the date of trial: Smith at para 21, Hodgson v Hodgson, 2005 ABCA 13 (CanLII) at para 10, 248 DLR (4th) 95, Mazurenko v Mazurenko, 1981 ABCA 104 (CanLII), 30 AR 34. I adopt that date of valuation for all purposes in this decision.
[10] In Hodgson, the Court of Appeal set out a four-step analysis for the Court to follow in order to achieve a just and equitable division of property owned by the parties at date of trial:
1. determine all property owned at the date of trial;
2. discern the property that is exempt from distribution under s 7(2) or that can be traced to s 7(2) property as not connected to the marriage;
3. determine what property falls under s 7(3); and
4. divide the balance of the remaining assets equally, unless it would be unjust and inequitable to do so considering the factors set out in s 8.VII. Section 36 of the MPA, Harrower and Jackson
[31] Counsel for MS. K. argued I should find that Mr. K. transferred to MS. K. an undivided one-half interest, in tenancy in common, in the Tory Road matrimonial home in accordance with the Will of November 7, 2007, the Transfer of Land of November 8, 2007 and the Certificate of Title of November 19, 2007, or in the alternative, on the basis of s 36 of the MPA and the decisions of our Court of Appeal in Harrower v Harrower, 1989 CanLII 221 (AB CA), 68 Alta LR (2d) 97, 97 AR 141, and Jackson v Jackson, 1989 ABCA 197 (CanLII), 68 Alta LR (2d) 118, 97 AR 153. Counsel for Mr. K. argued that I should restrict my findings to the Harrower / Jackson analysis. Counsel for Mr. K. argued that s 8 of the Law of Property Act, RSA 2000, c L-7 applies, and that if Ms. K. holds an undivided one-half interest in the Tory Road matrimonial property as a tenant in common, she holds it in a resulting trust for Mr. K.
Calgary Matrimonial Property Act Lawyers Explain Partial Loss Of Exemption When Placed In Joint Names
[32] Historically, at common law, when one spouse gave property or money to the other during the course of the marriage, that was presumed to be a gift and was known as the presumption of advancement.
[33] Section 36(1) of the MPA clarified the common law by directing that the Court was not to apply the presumption of advancement as between spouses in respect of property acquired by one or both before or after, which I take to mean “during”, the marriage.
[34] Section 36(2), however, confirmed the presumption of advancement in the absence of evidence to the contrary, where the property was put into the name of both spouses as joint owners. This was affirmed in the Harrower and Jackson decisions. The result from those cases in the situation of joint ownership was that each of the spouses bringing exempt property into a marriage were deemed to have gifted half of the exempt amount to their spouse, such that only half of the exemption became matrimonial property.
[36] The Court in Harrower warns that marriage is not “like a business partnership”. It said: “The Act was passed in recognition of the fact that ordinary business rules should not, indeed cannot, be applied to matrimonial property”. Similarly, in Kazmierczak v Kazmierczak, 2001 ABQB 610 (CanLII), [2001] AJ No. 955, aff’d 2003 ABCA 227 (CanLII), [2003] AJ No. 909, when addressing the issue of occupation rent, the Court cautioned that much care must be taken in carrying forward commercial concepts into the family law context.
[37] I have determined that, following Harrower and Kazmierczak, in the present case the more traditional rules with respect to property distribution as set out in Harrower and Jackson should apply.
[38] In Jackson, the Court said that the object of the MPA was to share the consequences of economic decisions made during marriage such that the accounting for the results of those decisions is necessary (para 13). Although Jackson dealt with an exempt gift being placed into joint names, rather than as tenants in common, under the factual circumstances in this matter, I conclude a presumed intention to subject the funds received from the sale of the two original parties’ properties invested in the Tory Road matrimonial home to be subject to the matrimonial property regime.
