Calgary Family Lawyers Assisting With Division of Property

During a separation or divorce, a couple must navigate the complexities of federal and provincial family laws to determine the proper division of their family property. A fair and legal division requires full financial disclosure from both parties as well as a thorough review of the particular circumstances of their relationship. Consulting with a skilled family lawyer helps parties create a comprehensive view of their assets and liabilities and secure crucial tax advice post-separation.

Division of Family Property in Alberta

In Alberta, the post-separation division of property is, in almost all cases, governed by the Family Property Act. The Family Property Act applies to couples who were legally married or were in a common-law partnership (adult interdependent relationship) and separated after January 1, 2020. The Matrimonial Property Act may otherwise apply to separations occurring prior to that date.

“Family property” includes all assets and debts a married or common-law couple acquires together during their marriage/adult interdependent relationship. This includes real estate, cars, investments, insurance policies, pensions, bank accounts, household items, mortgages, credit card debt, leases, loans, businesses, and many interests beyond this list.

Equal Division of Property & Exempt Property

Generally, family property is divided between spouses/common-law partners after they separate, including any property jointly owned by the parties. Couples must make a complete and honest inventory of their property, including values, relating to property, to identify what qualifies as “family property” for division. Non-disclosure or hiding assets can have serious legal consequences.

While family property is often divided equally between the spouses or common-law (adult interdependent) partners after separation, some property is exempt from the division process. This can include:

• Inheritance or gifts received by one spouse (i.e. an inheritance or family gift that was intended for that spouse only and not the couple together);
• Money awarded through certain court settlements or insurance claims;
• Property owned by one of the spouses before they entered into the common-law partnership/adult interdependent relationship or got married.

Claims for Unequal Division of Property

Additionally, there are some circumstances in which it would be fundamentally unfair for property to be divided equally. Some examples of property that may be divided unequally include:

• Property that was purchased by one spouse and paid for without using any family property;
• Property purchased by one spouse using income derived from exempt property (i.e. property solely owned by that spouse); for example, rental income earned through the use of a home owned exclusively by one spouse or that was owned by them before the marriage/adult interdependent partnership;
• An increase in an exempt property’s value that was largely due to one spouse’s effort or pure market forces; or
• Some gifts between spouses.

All property, even potentially exempt property or property that could justifiably be unequally distributed, must be carefully inventoried and traced. If the parties cannot reach an agreement, the spouse claiming certain property is exempt or warrants an unequal distribution bears the burden of proving their claim.

Possession of the Matrimonial (Family) Home

After separating, common-law/adult interdependent partners or married spouses may be able to negotiate what happens to the home where they lived together. The “matrimonial home” is defined as a property that is owned or leased by one or both of the spouses and was occupied by the couple as their family home.

Often, one or both of the spouses/adult interdependent partners will agree to vacate the family home. However, a couple can continue to reside in the home at the same time and still live “separate and apart”. While what constitutes living separate and apart varies by each couple’s circumstances, it generally means they are living independently from each other, even while under the same roof. For example, they sleep in separate bedrooms, do not attend the same social events, and don’t hold themselves out to the world as a couple.

If the parties cannot agree on who will leave the family home, one spouse or partner may apply to the court for an order of exclusive possession of the property. Such an order declares that one spouse is entitled to remain in the home for a specific period of time while the other must leave. Before granting exclusive possession to one of the parties, the court will consider both spouses’ financial circumstances, any other existing court orders, and the needs of the family’s children. The court may also include terms in the order regarding which household goods are to remain in the family home.

DBB Law: Leading Calgary Family & Divorce Lawyers Advising on Property Division

Property division is one of the most detail-oriented and complicated issues in family law matters. Having a qualified family lawyer is critical to secure all entitlements for you and your children. Orders and agreements must be based on complete and reliable financial disclosure from both parties. The knowledgeable family and divorce lawyers of DBB Law provide comprehensive, personalized legal solutions to even the most complex property division matters. As a recognized leader in Alberta family law, we have provided exceptional service to Western Canadians for over 40 years. To schedule a confidential consultation with a member of our family law group, contact us at 403-265-7777 or reach out online.