Division of Property

EXEMPT PROPERTY
The “presumption” of the Matrimonial Property Act is that everything is to be divided equally. Section 7 of the Matrimonial Property Act provides that certain property may be exempt from the matrimonial property regime. If you are claiming an exemption, the onus rests on you to prove that you are entitled to an exemption. The following are exemptions:

  • Property acquired by a spouse by gift from a third party;
  • Property acquired by a spouse by inheritance;
  • Property acquired by a spouse before the marriage;
  • An award or settlement for damages in tort in favour of a spouse (subject to some limitations);
  • 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.

Generally speaking, one must be able to trace an exemption to an asset. The consumption or dissipation of exempt property (eg. Paying off one’s credit cards or taking a trip to Cuba) does not create a “notional debt” that must be accounted for by the other party.

MATRIMONIAL HOME
Where the family or legally married couple have resided.

MATRIMONIAL PROPERTY ACT (MPA)
This provincial legislation governs the division of matrimonial property. Section 7(4) of the MPA states that unless property is exempted from the matrimonial property regime as a result of factors in ss. 7 and 8 that all property is to be distributed equally between the spouses.

PENSION
A fixed sum paid regularly to a person or surviving dependent following his or her retirement. There are both public (Canada Pension Plan) and private (from one’s own employer) pensions. A pension contributed to during the marriage is usually considered matrimonial property and a pension that is not yet being paid at the time of marriage breakdown is property to be divided.



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