CANADA Law and Practice Contributed by: Lorne MacLean, KC, Fraser MacLean, Sophie Bartholomew and Rana Yavari, MacLean Law
• the length of the marriage and, in some jurisdic ‑ tions, the length of cohabitation (for both married and unmarried couples); • each spouse’s contributions to the acquisition, maintenance, preservation, or improvement of assets; • the existence and validity of support or property contracts; • the needs and best interests of any children, including how parenting arrangements affect the parties’ financial circumstances; • the parties’ financial positions at the time of divi ‑ sion; and • conduct that has materially affected the property, including dissipation, concealment, or similar behaviour. Although equal division or equalisation is the default rule in many jurisdictions, courts may depart from equal sharing where legislation permits unequal divi ‑ sion, typically framed around concepts such as “sig ‑ nificant unfairness.” Proper property division depends on accurate valu ‑ ation of income, assets, and liabilities. This requires full financial disclosure, including sworn statements of income, assets, and debts, along with supporting documentation from the parties – and where neces ‑ sary, from third parties. Courts will compel disclosure where appropriate and may sanction parties who fail to be frank and honest. Property Regimes Across Canada (Provincial/ Territorial Differences) Canada does not have a single national matrimonial property regime. Each province and territory adminis ‑ ters its own framework for married spouses, and the rights of unmarried partners vary significantly between jurisdictions. Many provinces and territories apply equalisation or family‑property sharing regimes, subject to statu ‑ tory exclusions. Spouses in most jurisdictions may opt out of or modify the statutory property conse ‑ quences through domestic contracts, including mar ‑ riage contracts and cohabitation agreements. Such agreements are typically enforceable if they comply with statutory formalities, are free from defects, were
negotiated fairly, and align with legislative objectives – even where they deviate from default rules. Trusts: Recognition and Treatment in Family Property Division Canadian courts recognise both fixed and discretion ‑ ary trusts. How trust interests are treated in family law proceedings depends on several factors, including: • whether the trust was created by a spouse or by a third party; • the nature and substance of the spouse’s interest; • the degree of control or certainty associated with the interest; and • the history of use and distributions from the trust. Trusts created by a spouse will often be treated as divisible property. In contrast, discretionary trusts created by third parties are generally not subject to division, though they may be considered a potential source of income in support proceedings. 2.4 Spousal Maintenance All jurisdictions in Canada – both federal and pro ‑ vincial – have legislation governing spousal support. Married couples, whether heterosexual or same‑sex, may claim spousal support under either the federal Divorce Act or the provincial support laws of their province of residence. In several provinces, unmarried couples in marriage‑like relationships are treated the same as married spouses for support purposes after a period of being in a marriage-like relationship which considers various factors including cohabitation (typi ‑ cally 2–3 years), or sooner when the parties share a child in a relationship of permanence. Canada is widely regarded as a generous forum for spousal support recipients and is often described as “payor‑unfriendly”, with outcomes that may approach an equalisation of incomes. Spousal support is tax‑deductible to the payor and taxable to the recipi ‑ ent, unlike child support in Canada. Canadian courts consider three issues when deter ‑ mining spousal support: (a) Entitlement. (b) Quantum (amount) – paid monthly or as a lump
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