LXM211 - Property Rights

Property Rights
● Who may apply for an equalization of net family property, and when
o Who? only spouses as defined in s. 1(1) of FLA
▪ parties who are living together cannot apply
o When?
▪ five triggering events set out in s. 5
● divorce is granted
● marriage is declared a nullity
● spouses are separated and there is no reasonable prospect that they
will resume cohabitation
● one spouse dies
● a serious danger arises during cohabitation that one spouse may
“improvidently deplete” his/her net family property
o Limitation Periods - s. 7(3)
▪ Application for equalization cannot be brought after the earliest of:
● 2 years after date marriage is terminated
● 6 years after date spouses separate
● 6 months after death of first spouse
▪ No limitation period for application based on improvident depletion
● Powers and discretion of the court on an equalization application
o Powers of the Court - s.9
▪ primary power is to order the spouse with the higher NFP to pay the
equalization amount to the spouse with the lower NFP
▪ court does not have power to order transfer of specific assets except as a
means of satisfying the obligation to make the equalization payment
▪ applicant seeks an order for an equalization payment, not for a share in
any particular asset(s)
● Calculating net family property and equalization payment
o Other doc.
● Equalization of net family property on the death of a spouse
o FLA provides for equalization of net family properties
o Equalization is achieved through a series of calculations designed (subject to
certain excluded property) to arrive at dollar amount of:
▪ value of property acquired by each spouse during the marriage; and
▪ increase in value during marriage of property owned by each spouse at
date of marriage and then to divide that dollar amount equally between the
spouses
o Spouses do not share property – they share the value of property
o Spouses share equally in
▪ the value (at separation) of most property acquired during the marriage
and
▪ the increase in value during the marriage of previously owned property
o Exceptions:
▪ certain property, even though acquired during the marriage, is not shared
(gifts, inheritances)
▪ matrimonial home (property occupied as a family residence at time of
separation) – full value is shared, not just increase in value, even if
acquired before marriage