CANADA Law and Practice Contributed by: Lorne MacLean, KC, Fraser MacLean, Sophie Bartholomew and Rana Yavari, MacLean Law
2.3 Division of Assets Overview of the Court’s Approach to Property Division In Canada, property division upon separation is gov ‑ erned primarily by provincial and territorial legislation. Although the statutory frameworks differ across juris ‑ dictions, the general approach is broadly consistent: most provinces and territories use an equalisation model to address property accumulated during the marriage. This model operates subject to fairness considerations, statutory exemptions, and the Court’s discretion, which reflects the spouses’ joint – though not necessarily identical – contributions. “Family property” typically includes all real and per ‑ sonal assets acquired by either spouse during the marriage. Certain categories of property are often treated as excluded property, such as gifts, inherit ‑ ances, and assets owned before the marriage. How ‑ ever, some provinces require sharing of the increase in value of otherwise excluded property. The valuation date for assets and liabilities varies by jurisdiction. Depending on the governing legislation, valuation may occur on the date of separation, the date of the final judgment, or another date mutually agreed upon by the parties. Financial Orders Available on Divorce and Relevant Considerations Superior courts exercising family jurisdiction have broad authority to issue financial orders that imple ‑ ment property division and allocate resources fol ‑ lowing marital breakdown. Depending on the statute, commonly available orders include: • orders dividing or equalising family property; • orders requiring the sale or transfer of assets; and • orders dividing pensions and other retirement assets in accordance with pension and family property legislation. When determining appropriate relief, courts generally consider a combination of statutory and equitable fac ‑ tors, such as:
• the habitual residence of the spouses; • the location of financial information; • whether parallel proceedings exist abroad; • the applicable law; and • the enforceability of any future support orders, especially where the payor’s income originates in the foreign jurisdiction. Effect of a Foreign Divorce A valid foreign divorce generally removes a Canadian court’s jurisdiction under the Divorce Act to issue cor ‑ ollary relief orders. However, provincial courts may still have jurisdiction to address spousal support, child support, and property claims, provided these issues were not resolved in the foreign proceeding. 2.2 Service and Process in Financial Proceedings In financial proceedings, originating claim documents generally require personal service. When a party is represented by counsel, service may also be accepted through their lawyer. If personal service is not practi ‑ cal, the court may order substituted service. A core principle in Canadian law is the duty to pro ‑ vide full financial disclosure when resolving family law disputes. This includes completing a sworn Financial Statement and attaching all required income and asset documentation. The court process places strong emphasis on resolv ‑ ing matters outside of trial and provides several set ‑ tlement‑focused procedures to facilitate resolution. Most cases are settled before reaching trial through negotiation, mediation, or arbitration. There is no fixed timeline for the overall duration of financial proceedings, as timing depends on case complexity and court scheduling. Interim financial relief can be sought immediately after separation. Although timelines vary, it generally takes about one year for a matter to proceed to trial. For ultra‑high‑net‑worth (UHNW) cases, income calcula ‑ tion and asset valuation experts are often involved.
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