Calgary Marriage Like Relationship Property Division Lawyers deal with constructive trust and “joint family venture” claims. The best Calgary Marriage Like Relationship Property Division Lawyers know the financial stakes on separation after a long marriage like relationship, where children are born and each side puts their heart and soul into acquiring substantial personal, company and real estate assets – are huge. Understanding what a constructive trust and joint family venture is crucial to a fair result if your unmarried common law relationship breaks down.
Calgary Marriage Like Relationship Property Division Lawyers
In British Columbia parties in a marriage like relationship lasting longer than 2 years are treated the same as if they were married for family property division claims. But top Calgary Marriage Like Relationship Property Division Lawyers know that married and unmarried couples are treated differently in terms of Calgary property division rights when their relationship breaks down.
More Calgary family law clients now live together in unmarried, common law or marriage like relationships. Ideally the parties will enter into a cohabitation contract that sets out what their expectations and property and support rights are but when they don’t our team of skilled Calgary Marriage Like Relationship Property Division Lawyers are ready to assist.
MacLean Law’s Calgary family lawyer office is located downtown Calgary in Bankers Hall and senior Calgary family lawyer Peter Graburn looks forward to meeting with you to discuss your Calgary marriage like relationship property division question. Call him at 403-444-5503 or click here to set up an appointment to meet with him.
MacLean Law is one of Canada’s largest and most experienced family law firms and is a multiple winner of Top Choice Awards as top Vancouver family law firm.
Calgary Marriage Like Relationship Property Division Lawyers 403-444-5503
So how is Calgary matrimonial property divided between parties in a common law or marriage like relationship when the relationship ends and things go sideways?
In this year’s Alberta Court of Appeal decision of Buchner v Long, 2017 ABCA 382 a disgrunted common law husband appealed from a 50/50 division of the common law couples assets they acquired over a 20 year multi child relationship saying the court treated them as if they were married. The Court of Appeal explained that a trial judge’s decision is entitled to deference and explained the law that applies to dividing property in Calgary marriage like relationships:
[1] When the appellant and the respondent first met, the respondent was a student with $20,000 in student loan debt while the appellant, who had an engineering degree and a computer science degree, was working in his chosen field. Shortly after the couple met and just before the respondent moved to Vancouver to begin her Master’s program, the respondent became pregnant. The appellant and respondent decided to live together to raise their family.
[2] The appellant and the respondent lived together in a marriage-like relationship thereafter for the next 20 years. In that time, they raised three children, endured the loss of a still-born child and the miscarriage of another. The appellant gave the respondent a ring and they held themselves out in their community as husband and wife. Together they acquired two properties and generated other liquid assets worth slightly less than one million dollars, virtually all of them in the appellant’s name.
[3] During their time together, and while acting as the children’s primary caregiver for the parties’ three children, the respondent earned her Ph.D. When they finally separated, the appellant’s net worth was slightly less than one million dollars whereas the respondent’s net worth was zero, her liabilities having exceeded her assets.
[4] The respondent sought her share of the accumulated assets and, in addition, sought a constructive trust in relation to those assets.
[9] The appellant appeals the trial judge’s decision to value the respondent’s contribution to the joint family venture at 50 percent. The appellant argues that the contributions made by the respondent do not support that award, that a damage award representing 50 percent confers the benefit of the matrimonial property regime on parties who chose not to marry, and finally, that the trial judge’s award is contrary to Alberta jurisprudence in similar cases.
Calgary Marriage Like Relationship Property Division Lawyers 403-444-5503 – Law
[15] At the outset, it is clear that the trial judge well understood the legal principles applicable to unjust enrichment and to the requirements necessary to find that a joint family venture existed.
[16] The appellant challenged the trial judge’s finding relative to each of the four joint family venture factors, or alternatively, the application of those principles to the facts. In doing so, the appellant draws on the dissenting reasons in Lemoine v Griffith, 2014 ABCA 46 (CanLII), 569 AR 85 to support his argument that a qualitative inquiry into the strength of the joint family venture is required which in turn will inform the appropriate remedy. Respectfully, that is not what is intended by the reference in the dissenting views in Lemoine at para 106 to “the extent of the family venture”. In Lemoine, one of the parties had assets that pre-existed the common law relationship within which the joint family venture was found to have arisen. The dissenting judge followed the principles set forth in Kerr v Baranow, 2011 SCC 10 (CanLII), [2011] 1 SCR 269, but was concerned that, in his view, the trial judge had not considered what assets were actually included in the joint family venture. That is plain from the following passage from the dissenting reasons:
[112] Thus it is true that the unjust enrichment claim does not have to be assessed on an asset by asset basis, but can be applied globally to the joint family venture. But that is only true with respect to the assets that are a part of the joint family venture. Where there are assets that are a part of a joint family venture, the entire venture can be valued as a unit without breaking out the individual assets. But where different assets have different characteristics under the enrichment/deprivation analysis, it is not possible to simply lump them all together. Assets owned by one of the spouses prior to the cohabitation, inherited assets that are not brought into the joint family venture, or assets that are outside the matrimonial regime by agreement, fall into a different category. Likewise, the contribution the respondent made to some increases in value may differ qualitatively from her contributions to other increases (for example, inflationary increases). In such a case, like this one, the trial judge will have to apply the unjust enrichment analysis to each different category of assets. The failure of the reasons to recognize this distinction was an error of law …
[17] On the record before the court, virtually all of the assets were accumulated during the parties’ 20 year relationship. The trial judge was aware of the need to define the scope of the joint family venture and, on that basis, excluded an exemption to which she found the appellant was entitled. She also raised the possibility that the appellant’s RRSP amounts may include some pre-existing value, but she did not take that into account because the appellant’s continued failure to fully disclose his financial information precluded her from according any value to that claim.
[18] On a careful reading of the reasons, the trial judge was aware of the contrary evidence the appellant identifies in his factum relative to each factor, but reached a different conclusion than the one the appellant urges on this Court. She found that the appellant and the respondent: “lived together in every respect as a modern family with shared contributions … derived from their labours inside and outside their homes” (at para 101); they pooled human and financial resources throughout their twenty year relationship and they conducted themselves under these unspoken arrangements for years (at para 102).She found evidence to support each of the factors and the record amply supports her findings relative to both the existence of a joint family venture and the respondent’s contribution to it. Essentially, what the appellant is asking this Court to do is to engage in a reweighing of the evidence relative to each of those factors contrary to the standard of review.
[19] Provided that the correct legal principles are applied, and the findings of fact are not tainted by clear and determinative error, a judge’s assessment of damages is to be treated with considerable deference on appeal: Kerr v Baranow at para 158.
[20] This ground of appeal is dismissed.
Calgary Marriage Like Relationship Property Division Lawyers Explain What The Test Is For Joint Family Venture
In the leading case of Kerr v Baranow the test to be applied by Calgary Marriage Like Relationship Property Division Lawyers was summarized as follows:
To determine whether the parties have, in fact, been engaged in a joint family venture, the particular circumstances of each particular relationship must be taken into account.
This is a question of fact and must be assessed by having regard to all of the relevant circumstances, including factors relating to mutual effort, economic integration, actual intent and priority of the family. The pooling of effort and team work, the decision to have and raise children together, and the length of the relationship may all point towards the extent to which the parties have formed a true partnership and jointly worked towards important mutual goals. The use of parties’ funds entirely for family purposes or where one spouse takes on all, or a greater proportion, of the domestic labour, freeing the other spouse from those responsibilities and enabling him or her to pursue activities in the paid workforce, may also indicate a pooling of resources. The more extensive the integration of the couple’s finances, economic interests and economic well‑being, the more likely it is that they have engaged in a joint family venture.
The actual intentions of the parties, either express or inferred from their conduct, must be given considerable weight. Their conduct may show that they intended the domestic and professional spheres of their lives to be part of a larger, common venture, but may also conversely negate the existence of a joint family venture, or support the conclusion that particular assets were to be held independently.
Another consideration is whether and to what extent the parties have given priority to the family in their decision making, and whether there has been detrimental reliance on the relationship, by one or both of the parties, for the sake of the family. This may occur where one party leaves the workforce for a period of time to raise children; relocates for the benefit of the other party’s career; foregoes career or educational advancement for the benefit of the family or relationship; or accepts underemployment in order to balance the financial and domestic needs of the family unit.
