Lecture 10 and 11: Family Property 100%

Question 1

Has family law had reform over the years?

What was the main reason for this?

Answer 1

Yes it has had substantial reform.

It was done to give married women, couples in common law and same sex couples more rights

Question 2

What does the word “coverture” mean?

What was the latin word they used?

Answer 2

It says by marriage, the husband and wife become one person in law. A women’s legal existence is suspended during marriage.

Only married women.

Femme-covert

Question 3

What is a dower?

Who is it for?

How much land does it give? What type of estate?

Answer 3

Dower: Refers to a form of marital property right. It entitled a widow (women) a life interest in a portion of the land owned by the deceased husband.

ONLY 1/3 of land. (life estate)

Question 4

What is a curtesy?

Who is it for?

How much land does it give? What type of estate?

Answer 4

Curtesy: it entitled a widow (man) a life estate in a portion of the land owned by the deceased wife.

ENTITLED TO ALL OF THE LAND in a life estate

Question 5

What was a problem dower created?

Answer 5

Dower created problems The wife could claim dower after the transfer occurred that she has a life estate in the property after a sale. Thus, a new owner would be subject to this.

Measures were introduced laws were introduced to fix this as they claimed it was unfair for a new purchaser.

Question 6

How did the courts try and supervent coverture?

Answer 6

They would establish family trusts which allowed the land to go to for example the brother so the husband didn’t take it all.

Question 7

What did the 1978 Ontario Family Law Act largely do?

Answer 7

Allowed women to get property (50/50 spit)

Question 8

Murdoch v Murdoch SCC 1975:

Facts: Wife had helped her husband with a ranch and the husband was the title holder. There was a marriage breakdown, and the wife tried to claim partial ownership of the land because of a trust. She argues she should get some of the property.

Issue: Can she claim some of the property?

1) According to the majority, what did the wife need to prove to claim some of the land?

2) What was the dissent?

Answer 8

Holding:

1) SCC said that financial contribution was an essential ground to an interest in property. Court said her actions were not beyond any wife’s duties.

Because she did not make a direct financial contribution, the majority in the SCC did not look beyond the husband’s legal title.

2) The dissent was very important. Justice Laskin concluded the facts justified a constructive trust, recognizing the significant contribution of Murdoch that went beyond what a ‘wife’s duties are”

Question 9

What was the important dissent of Murdoch?

Why is it important?

Answer 9

The dissent was very important. Justice Laskin concluded the facts justified a constructive trust, recognizing the significant contribution of Murdoch that went beyond what a ‘wife’s duties are”

It was acknowledged in cases after.

Question 10

What is a constructive trust?

Answer 10

A constructive trust is a remedy is used to provide a remedy in situations where a titleholder of property would be unjustly enriched unless equity compelled them to share the property with someone who contributed to acquiring or improving the property.

Question 11

What are the three main issues in a divorce?

Answer 11

1. Child support; monetary payment
2. Spousal support; monetary payment. If someone is earning more can ask for some payment due to this.
3. Equalization of family property. What each party has for property.

Question 12

Family Property Statues

How would Ontario deal with property?

What is the main idea about equalization of family property?

Answer 12

In Ontario, the value of all property that was acquired by the spouses need to be counted for and would give each spouse a 50/50 split.

When divorcing, you value everything that is property and you give equalization to make it 50/50

Question 13

What is the three part test for a constructive trust?

Answer 13

Test for constructive trust

1. Must be a direct link between contributions and the property
2. The contribution must be substantial.
3. A monetary award would be inadequate

Question 14

Can a statute overturn constructive trust?

What is the only remedy for a common law couple?

Answer 14

Yes a statute can and instead put another remedy in place.

Only remedy for a common law couple is a constructive trust.

Question 15

Hypothetical

Your wife has helped you run your business for 30 years. It’s in your name. You divorce.

She wants property

1) What first needs to be proved?

2) Whats the test for the first thing?

3) Assuming the first thing is proved, what happens next?

4) Whats the second thing that needs to be proved?

5) Whats the three part test?

6) Whats the likely outcome?

Answer 15

1) Whether there is unjust enrichment.

2) Test for unjust enrichment is:
1. An enrichment
2. A corresponding deprivation and
3. An absence of legal reasons for the enrichment.

3) See if monetary damage is adequate. If not.

4) If it gets a constructive trust.

5) Test for a constructive trust is:
1) When the claimant can establish a direct link between there contribution and the property
2) The contribution was substantial
3) A monetary award would be inadequate.

6) They worked for so long, money is not enough as it would reflect the individuals contribution.

Question 16

Sorochan v Sorochan

1) Does the constructive trust doctrine include contributions or maintenance to property before the relationship?

Answer 16

Yes.

Court extended the constructive trust doctrine to include contributions to the maintenance or increase of property value before relationship started.

Question 17

Corless v Corless:

Facts: Wife tried to argue the husband law degree would be property. Couple met as students, married, and the wife supported the husband in getting the degree. She supported him financially for years.

Issue: Was the law degree property?

Answer 17

Holding:

Court held that the degree was technically property but it could have no value for purposes of equalization and thus was not included in the value of the family net property.

Question 18

Keast v Keast:

Facts: Wife put her mature student husband through medical school.

Issue: Is the MD property?

Answer 18

Holding:

Court awarded the wife extra spousal support but did not include the medial degree as property.

Question 19

Linton v Linton:

Facts: Wife helped husband get PHD

Issue: Is a PHD property?

Answer 19

Holding:
Court held the PHD was not included in his net family property even though his wife helped him get it.

She was awarded substantial ongoing financial support. Court held she was entitled to a benefical interest thus a constructive trust in the degree.

Question 20

Caratun v Caratun:

Facts: Wife worked hard for many years to help her husband get a medical degree. Two days after he got his dentist degree, he rejected the wife and told her to fuck off.

Issue: Is the dentist degree property?

Answer 20

Holding:

Court held a professional license is not property in the meaning of the FLA.

Trial judge said the dental license was property but instead of valuing the property, the court said it was a constructive trust in the value of 30k.

The 30k is the wife’s contribution to the acquisition of the dental license. Awarded 30k.

Question 21

Is a pension property?

Answer 21

Yes according to Clark v Clark

Question 22

Suppose:

Husband is a lawyer. Wife is a banker. They work together, have some investments on the side. Wife makes more money. They divorce. Husband claims he is entitled to equalization payments on her earnings.

Is there an entitlement to money for the difference in earnings?

Answer 22

No.

If the two individuals were pursing different careers and shared money in the investment account, that money account would likely be split

BUT no evidence that they were co-ventures in regards to their individual careers.

Question 23

What are the two main issues that a court faces with seeing a professional licence as property?

Answer 23

1) The nature and characterization of the licence. What rights would a wife get from her husbands dentist degree?

2) The value of the licence. How can you find the monetary $$$$ of this?

Question 24

Pettkus v Becker

Facts: Common law spouses lived together as husband and wife without marrying. While they lived together, Becker paid all living expenses. Pettkus deposited his income to his own bank account. They purchased a farm, and the money used was only from Pettkus and title was only to him. She had been paying rent for a long time, and they both contributed to the labor of the farm. They devolved a bee keeping operation as well. Any savings from both went into the farm itself. Another property purchased only in Pettkus money and bought with farm money. They break up. He told her to fuck off, gave her 3k, a car, and some beehives.

Issue: She sues for half of all.

1) Apply the dissent from Murdoch (What was it)

2) What did the court say is needed for a constructive trust?

Answer 24

Holding:

Majority in this court adopted the dissent from Murdoch.

Legislative at this time did not allow a common wife spouse to a share by any property.

SCC court said the judge did not really explain how much the wife did on the property. The principle of unjust enrichment is at the heart of the constructive trust remedy.

Court in this case held that a constructive trust CAN ONLY BE AWARDED where the NON-TITLED spouse had performed EXCEPTIONAL WORK

Question 25

What are the 3 Requirements for unjust enrichment

What is needed prior to constructive trust?

Answer 25

1. An enrichment
2. A corresponding deprivation and
3. An absence of legal reasons for the enrichment.

First you need unjust enrichment. If you have this, then you can go to a constructive trust

Question 26

Peter v Beblow

Facts: Wife wanted a constructive trust as she had done all the domestic work for more then 12 years but all the titles were in the husbands name.

Issue:

1) Assuming there is unjust enrichment, apply the three part test for a constructive test (what are they)

2) The courts ratio was what?

3) Could taking care of the children provide the basis for a constructive trust (beneficial interest) ?

Answer 26

Holding:

1. Must be a direct link between contributions and the property
2. The contribution must be substantial.
3. A monetary award would be inadequate

Court held there was unjust enrichment. Justice got rid of extraordinary contributions idea that is needed.

3) A contribution to the household wellbeing through child care without cash, could in fact provide the basis for a beneficial interest in the property.

Question 27

True or false: Assuming there is unjust enrichment, the next thing a court will do is just apply a constructive trust.

Answer 27

False. they will always see if monetary damages is an option first. if not, then go test to test for constructive trust

Question 28

Kerr v Baranow: Vanesse v Seguin

Facts: Appeals from female for spousal support and property.

Issue:

1) What did the court say is the main idea when valuing a constructive trust?

2) How do the courts look at partners who are working together when assessing value?

3) Why is monetary not usually enough?

4) What did the court finally hold about the idea of a casual connection between contributions and the property?

Answer 28

Holding:

1) In the SCC view, where both parties have worked towards the common good, and as a result have accumulated assets, the money remedy in unjust enrichment must show that reality.

2) It should not be based on a specific accounting. It should treat the claimant as a co-venturer.

3) SCC said that monetary award is not an accounting for a certain amount. It’s looking at the partners as partners in a co-venture situation and not as hired help.

4) Where the plaintiff can demonstrate a link or causal connection between his or her contributions and the acquisition, preservation, maintenance, or improvement of the disputed property, a share of the property proportionate to the unjust enrichment can be impressed with a constructive trust in his or her favour.

Question 29

What is the only options for a common law couple who divorce and one party has title the other doesn’t?

What about same sex individuals, what were their only remedy?

Has this changed for same sex individuals?

Answer 29

In Ontario, provincial statutes regarding property for married couples on divorce separation does not apply to co-habituating couples (common law couples) Principles of equity have been established for cohabitating couples (constructive trusts and unjust enrichments)

Same sex was also constructive trust

Changed as same-sex couples are in the FLA.

Question 30

How is the definition of property under the FLA categorized?

Are there exclusions under the FLA of property?

Answer 30

It is very very broad

Yes. For example property owned before marriage is excluded.

Question 31

Consider this example.

Suppose spouse A had a total property value after debts and exclusions of 200,000.

Suppose spouse B had a total property value after deducting debts of 100,000.

Apply equalization. What would A owe B?

Answer 31

The difference between these two values is 100,000.

Therefore spouse A would pay an equalization payments to B in the amount of $50,000.

Question 32

Big picture for professional degrees

1) Do courts find them as property?

2) If not property, what do the courts do to find some fair ground?

Answer 32

Typically they do not.

Courts say the other person is entitled to compensation as a result of their contribution.