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FactsEdit

Mrs. Ryan commenced divorce proceedings against her husband on the grounds of physical and mental cruelty; she also claimed custody of the three children and maintenance for the children and herself. This proceeding was very shortly after the coming into force of the Matrimonial Property Act.

IssueEdit

  1. How should an application for property division under the Matrimonial Property Act be dealt with in a divorce proceeding?

DecisionEdit

Custody granted to the mother, along with an equal division of matrimonial property as maintenance.

ReasonsEdit

Hallett, anticipating many more divorce hearings which will have an application for division of property under the Matrimonial Property Act sets out an approach for dealing with these matters concurrently. He sets out a four stage process:

  1. Apply for a division of property:
    • For married spouses seeking divorce, this application is made through the petition for divorce.
    • If parties are not seeking a divorce, must commence an application in the Family Division. Triggering events for a division of property are listed in s. 12(1) and are:
      1. petition for divorce;
      2. application for nullity;
      3. irreconcilable separation;
      4. death of one of the spouses.
  2. Exchange full financial disclosure:
    • Parties exchange written and sworn statements of financial information and property.
      • Statement of Property - a document detailing the value of respective property owned by the parties.
      • Statement of Financial Information - a document detailing the income and expenses of the parties.
    • These documents should include the necessary documentation, such as pay stubs, appraisals of property, bank statements, etc.
    • These documents are used to calculated each spouse's net worth.
    • All assets and debts should be disclosed, even if one spouse believes some of the assets are non-matrimonial assets under s. 4(1).
  3. Classify, Value, Apportion, Divide:
    1. Classifying:
      • Everything brought into the marriage or acquired during marriage is presumptively matrimonial. Burden is on the spouse seeking to show that an asset is non-matrimonial within the exceptions listed in s. 4(1).
    2. Valuation:
      • Choose a date from which to value and an amount which the good is worth.
        • Depreciating assets: valued at time of separation
        • Appreciating assets: valued at the date of division
    3. Apportionment:
      1. Is the division to be equal or unequal?
        • The division is presumptively equal under s. 12, but there may be grounds for an application for unequal division pursuant to s. 13. Equal provision is presumed unless spouse seeking unequal division can prove it would be unfair or unconscionable to divide equally.
      2. Is there a s. 18 claim for interest in a business asset?
    4. Division:
      1. Calculate an equalization payment.
      2. Figure out whether there are assets that should be rolled over separately.
      3. Should the matrimonial home be sold?
        • If the matrimonial home is to be given to one party and the other does not have the assets to pay the other for their interest in the home, that party can be ordered to take out a mortgage in the other party's favour to be paid on a number of events, including the sale of the home.
  4. Sign a separation agreement or if spouses cannot come to an agreement, proceed to trial.

RatioEdit

Lays out the procedure for dealing with a division of property application in the context of a divorce proceeding.

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