Alberta Family Property Act Division involves classifying the classes of Alberta family property and valuing it. Our Alberta Family Property Act division lawyers act across Alberta from our downtown Calgary office.
Calgary Alberta Family Property Act Division 1 877 602 9900
Alberta Family Property Act Division is relevant to the majority of family law cases dealing with separation and/or divorce. A fair property settlement can be life-changing for many clients, as it allows them to move forward in their lives after the breakdown of a marriage or marriage-like relationship with the benefit of financial stability.
What legislation governs the division of family and exempt property in Alberta?
The Matrimonial Property Act and the Family Property Act are the pieces of legislation in Alberta which govern the division of property upon the breakdown of a marriage or adult interdependent partnership. The Family Property Act came into effect on January 1, 2020, and replaced the Matrimonial Property Act. However, according to the transitional provisions in the Family Property Act (specifically section 39), the Matrimonial Property Act still applies to married partners who began living separate and apart before January 1, 2020. All other spouses or adult interdependent partners fall within the scope of the Family Property Act.
Family property, which also includes debt, is that which is acquired by either partner or jointly, during a relationship of interdependence or after separation. According to the Family Property Act, property to be distributed is valued at the date of trial – not the date of separation – unless otherwise agreed upon by the partners in writing (section 7(2.1)).
Is all property subject to equal division?
Not all property owned by separating spouses is subject to division as between them. The following is exempt from the division of family property:
- Gifts from third parties;
- Awards or settlements for damages (e.g., an award for damages received as a form of compensation resulting from a successful lawsuit for wrongful dismissal);
- Insurance proceeds; and
- Property owned by either party before the relationship of interdependence began.
Edmonton Alberta Family Property Act Division
For a property to be classified as exempt, it must be traceable to existing assets. A spouse or partner claiming an exemption must provide evidence to show that the exempt property still exists or can be traced to other existing assets. For example, if a spouse inherits a house (exempt property) and then sells the house, s/he must show that the proceeds were used to buy a new house (or some other asset) for the inherited property to be exempt. The exempt property’s market value when the relationship began or when the asset was acquired (whichever is later) is exempt from division. However, if the value of the exempt property has increased during the relationship, then the increase in value may be divided in a manner that the court considers “just and equitable”.
The starting point for the division of family (or non-exempt) property is that it is divisible equally. However, Alberta judges have the discretion to divide property unequally if an equal division would not be fair given the particular facts of the case before them.
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What is the process for resolving a property division dispute?
If separating partners or spouses can agree on how to distribute their property outside of the court process, this agreement can be formalized in a written separation agreement. They may come to an agreement on their own or with the assistance of lawyers and/or mediators. Each of the spouses should obtain independent legal advice concerning the agreement for it to withstand judicial scrutiny and remain legally binding. Alternatively, if spouses can reach an agreement regarding the distribution of their property and they would like to formalize this agreement within the court process, they can seek to enter a consent family property order, which would include specific terms outlining the agreement.
If spouses cannot agree on how to divide their property, then an application for a family property order may need to be made by Statement of Claim. A Statement of Claim is a commencement document that gets filed with the court. The filing of a Statement of Claim provides the parties to the action with a court filing or action number. An application for a family property order cannot be made in chambers; rather, a full trial may need to be scheduled in the Court of Queen’s Bench, particularly in cases where the value(s) of property is/are highly contentious. Morning chambers is not an appropriate forum to deal with family property, save for consent matters, procedural orders, and perhaps some interim property distributions.
The law as it relates to the Alberta Family Property Act Division property is complex and differs between provinces in Canada. As such, the advice of MacLean Law’s property division lawyers in Alberta and BC is invaluable in achieving a fair and equitable resolution in your family law matter.