Division of Property

Our team is committed to assisting with your property issues. We understand that it is a very complex process and truly hard to navigate. Currently in Alberta, if you do not agree on property issues you will need go to trial in front of a judge, which can be lengthy and quite costly.

In Alberta, the value of your property is determined at the date of the trial. In common law separation, Alberta has no legislation that indicates how to divide property when an unmarried couple separates, which could also result in a costly legal battle.

There are changes being made to the Act which will affect common-law couples effective January 1 2020. Our goal is to assist you in knowing what your rights are regarding property and providing you the knowledge you need.

Some of the common questions our family lawyers in Edmonton hear when dealing with property division are:

• How is property divided in Alberta?
• Is property acquired after a separation still considered matrimonial property?
• How do I protect my assets during a divorce?
• Is my spouse entitled to my pension?
• Are RRSPs considered property?
• Is my spouse entitled to my US property?
• How do we split a time share during a divorce?
• Is my ex responsible for their own debt?

Divison of Family Property

The division of family property can be a complex process. Matrimonial property is defined broadly, and can include the following forms of property:

• Money in separate and joint bank accounts;
• The matrimonial home;
• The family farm;
• Pensions;
• CPP Credits;
• Real estate;
• Savings;
• Vehicles;
• Business Assets;
• Stocks and Bonds;
• Shares in incorporated companies;
• Intellectual property, such as patents and trademarks;
• Some types of life insurance;
• All personal and household property; or
• Even investments, including RRSPs.

Further, any debt that you have incurred may also considered divisible matrimonial property. This could include:

• Credit Card debt;
• Lines of Credits; or
• Car loans.

There are important time limitations you must consider when making a claim for division of property. If you start and complete your divorce proceedings without dealing with property, you must bring the property distribution claim within 2 years of the date of the Divorce Judgment.

The Matrimonial Property Act defines property different ways.

Equally Shared Property
Equally shared property includes everything that you acquired together during the marriage. If you owned the property while you were married, the law presumes that you should share it equally.

If your name is not on the property, it is still considered matrimonial property. For example, if you and your spouse buy a house but only one of your names is on the property, then it is property is to be shared equally.

If you feel that specific property should not be shared equally, then you must have a good reason why, with evidence to support your reasoning.

The Matrimonial Property Act outlines how the Courts could decide whether the property should be shared equally or not:

• The length of your marriage. The longer the marriage, the stronger the presumption of equal sharing is.
• If you made contributions to the marriage and to the well-being of your family.
• Contributions made by you and your spouse to any business, farm or enterprise owned by either you, your spouse or both of you. The contributions that were may be made directly or indirectly to obtain, improve, or manage the asset. The contribution could be money or made in some other form such as material, equipment, or labour.
  Any contributions made by your or your spouse to acquire your property and/or improvement of the property.
  The financial resources that you and your spouse had when you got married and what you each have at the date of trial. The Court will look at income, earning capacity, debts, obligations, and other property or resources.
• Property acquired after you and your spouse separated. You are still married when you separate and property is determined as of the date of trial if you cannot agree.
• A written agreement made between you and your spouse before the marriage.
• A situation where a sizeable gift was made by either spouse to someone else or where assets are transferred to someone else who did not pay market value for the asset.
• If you dispose of property to the other’s disadvantage, such as selling their assets and pocketing the profit.
• Any other circumstances the Court may find relevant.

Exempt Property
Exempt Property is property that you do not have to share with your spouse. Exempt property could include:

• inherited property
• property that you brought into the marriage
  gifts from third parties to one of you alone

To claim the property as exempt, you must prove that the asset still exists or the proceeds of the sale are traceable into another asset. You can also lose a part of your exemption if you put money from your pre-owned asset into a new asset in joint names, such as a matrimonial home.

Common-Law Property
In Alberta, common law couples are legally referred to as adult interdependent partners. Currently there is no legislation that governs the division of common law property.

The Matrimonial Property Act only encompasses parties who are married. Parties in a common law relationship may claim interest in property in the event of a relationship breakdown.

In Alberta, you will need to prove that you are entitled to a claim for property, which could result in a lengthy and costly battle. Please contact our firm for a free half an hour consultation to discuss your claim to a property division in a common-law relationship.

Changes to the Matrimonial Property Act.
On January 1, 2020, the Matrimonial Property Act will be renamed to the Family Property Act. What that means is that the rules for married and unmarried couples will now be the same.