property issues

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Property Issues

In partnership with the Edmonton Public Library

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Agenda Introductions How this evening’s presentation will proceed Housekeeping – washroom locations You have three things in front of you:

A copy of this PowerPoint Distribution example sheet A resource sheet A feedback form that we ask that you fill out before you

leave tonight to help us improve these sessions

Resolving Issues General Info Jurisdiction Process Reaching

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DisclaimerThe information presented during this session may have limited application to your particular

situation. The lawyers who are here this evening CAN provide legal information that

may give you a greater understanding of how the law might apply to your own situation. The

lawyers who are here this evening CAN NOT provide you with individual legal advice.


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Legal Assistance1. Legal Aid – (780) 427-75752. Student Legal Services – (780) 492-8244

Law students Simple support/valuation applications; Substituted service orders;

Uncontested divorces

3. Duty Counsel Provincial Court – Courtroom 441 Court of Queen’s Bench – Courtroom 314 and 612

4. Limited scope retainer5. Pro bono legal services6. ECLC – Summary legal advice


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ContentsA. Resolving Issues Out of Court

B. General Information

C. Jurisdiction

D. ProcessI. Disclosure

II. Valuing Assets

III. How does the Matrimonial Property Act work?

IV. How Property Gets Divided


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ContentsE. Reaching an Agreement

F. Common Law Couples

G. MiscellaneousI. Starting an action

II. Death of spouse

III. Exclusive Possession Order

IV. Prenuptial and cohabitation agreements

H. Example Problems


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A. Resolving Parenting Issues Out of Court


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B. General

If married Matrimonial Property Act applies.

If not married and failing agreement court discretion.


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C. Jurisdiction

Can start action in Alberta if: divorce action started in Alberta, both parties live in Alberta, or the last joint residence was in Alberta.


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D. Process

DVDDisclosure, Valuation, Division


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I. Disclosure1. Both sides must provide all information

about their property and debts.Property statement required under Matrimonial Property Act

where action started.

2. Information must include everything, wherever it is located.


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I. Disclosure3. There are a number of methods to get this

information from the other side Requesting it Notice to Disclose Questioning

4. Consider: Date to value property Extra information needed for valuation process


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II. Valuing Assets1. Alberta law requires that assets are valued

at “date of trial”

2. Parties can agree on a date

3. Date used affects disclosure of information


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II. Valuing Assets4. Examples of Assets and Methods of

Valuationa) Real Estate (e.g. home) valued by

i. Appraisal (AACI or CRA)ii. Realtor’s market evaluationiii. By agreementiv. Property tax assessment


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II. Valuing Assetsb) RRSPs

i. Statements usually sufficientii. Tax discount or equalize by transfer

c) Pensionsi. Defined benefit plan (needs valuation) vs. defined

contribution plan (statement usually sufficient)ii. Best to get pension details and recent statements


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II. Valuing Assetsc) Pensions (continued)

iii. Entitled to division – options depend on type of pension, ages of parties, and whether or not pension is “in pay”

iv. Valuation options Request value from administrator (government/private –

also confirm division options from administrator) Hire accountant or actuary

v. Consider taxes


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II. Valuing Assetsd) Businesses/Farms

i. Can be complicatedii. A lot of information is usually requirediii. Formal valuation range of types/costsiv. Issues often related to income


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II. Valuing Assetse) Personal property

i. “Market value”, not replacement costii. Can pay to have it valuediii. Best to divide in kind or agree on valueiv. Internet sites are a good resource (Kijiji,

Autotrader, etc.)v. Offense to dispose of household goods after

action started under the Matrimonial Property Act


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1. 3 types of propertya) Property acquired during marriage

equal division (subject to (b) and (c)) Rare to depart from equal division


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b) Exempt property – not shared (must “trace”) Gifts from third parties Inheritance Acquired before marriage Tort awards Proceeds of insurance policy

Value when acquired (on date of marriage) is exempt from division


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c) s. 7(3) property – “just and equitable” division


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2. Section 8 factors apply to all 3 types of property, but must be considered for s. 7(3) property – s. 8 factors include:

Contributions made by spouses Length of marriage Circumstances of parties at date of marriage and date of trial Oral or written agreement between parties Property acquired while parties were separated Gifts or transfers to third parties (not bona fide)

Read s. 8 of Matrimonial Property Act for more particulars


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IV. How property gets divided1. Real property options for division

a) One party buys out the otherb) Property soldc) Capital property “rollovers”


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IV. How property gets divided2. Pension options for division

a) One party buys out interest of other directly or in overall division

b) May be able to divide at source


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IV. How property gets divided3. RRSP options for division

a) Split between parties (roll-over)b) Using value (subtract tax) and one party buys

out other directly or in overall division


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IV. How property gets divided4. Business interest options for division

a) Can be complexb) Usually need an accountant or tax advice


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IV. How property gets divided5. CPP options for division

a) Credits earned during marriage can be splitb) Must apply


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IV. How property gets divided6. Debt options for division

a) Debts are part of matrimonial propertyb) Third party not affected by agreement of

spousesc) In some circumstances, debts after separation

may also be considered


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IV. How property gets divided7. Unusual assets – Get advice in dealing with:

a) Stock optionsb) Severance payc) Trust propertyd) Life insurance


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IV. How property gets divided8. Use of experts:

a) Check qualificationsb) Parties may agree on one expert and share

costsc) If going to court, statement of expert witness

required


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IV. How property gets divided9. Tax Issues:

a) Capital gainsb) RRSPs/Pensionsc) Corporate tax issues – important to consider if

2 levels of taxd) For some tax issues – difference between

married and common law


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E. Reaching an Agreement1. Independent legal advice requirement

2. Agreement should be in writing with proper certificates


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F. What rules apply to common law couples?

1. Matrimonial Property Act does not apply

2. Common law couples have some rights but they are more complicated – no defined period of time for rights to be acquired


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F. What rules apply to common law couples?

3. No presumption of equal property division4. Many factors to consider, including financial

and non-financial contributions of both parties, and benefits received by both parties

5. Best claims are long-term relationships and relationships with children


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G. MiscellaneousI. Starting an actionII. Death of spouseIII. Exclusive Possession OrderIV. Prenuptial and cohabitation agreements


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I. Starting an action1. If married

Statement of Claim for Divorce and Division of Matrimonial Property Form FL-3

Statement of Claim for Division of Matrimonial Property Form FL-2

2. If common law Statement of Claim – no form in rules BUT if common law prior to marriage, may add claim in

Form FL-2 and FL-3


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II. Death of spouse1. May start action if could have prior to death2. 6 months from grant of probate to start3. If action started prior to death, estate can

continue


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III. Exclusive Possession Order

1. If married Matrimonial Property Act Part II2. If common law Family Law Act applies if

spousal support order3. Similar to Restraining Order for home only


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IV. Prenuptial and Cohabitation Agreements

1. Can agree on property division if marriage/relationship breaks down

2. For married spouses, waive rights under Matrimonial Property Act

3. Independent legal advice required


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H. Example Problems1. John Doe and Jane Doe have been married for 10

years. At marriage breakdown, they have a home worth $350,000 with a mortgage of $275,000. Jane has a pension with the Alberta Government. Her contributions to that pension are $36,000. Jane has a vehicle worth $2000 and John has a vehicle worth $5000. They also have furniture, art, and electronics. Jane has $2000 of credit card debt…


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…John wishes to keep the Matrimonial Home, Jane wants to keep her pension, they each want to keep their own vehicles, and they want to divide the furniture, art, and electronics evenly between them.

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H. Example Problems2. Same fact set as in #1, with additional

scenarios:a) When the house was purchased, Jane used

her $150,000 savings accumulated prior to marriage for the down payment.

b) The house was put in both names when purchased.


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H. Example Problems3. Same fact set as in #1, with additional scenario:

During marriage, John inherited an acre of land on Vancouver Island. It was worth $50,000 when he received it and $125,000 at marriage breakdown. Except for paying the annual property tax of $1000, the parties made no contributions to this property during the marriage.


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detail:

The marriage broke down because Jane had an affair with a co-worker.


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scenarios:a) A month after the parties separated and

before any proceedings were started, John died in a car accident.

b) Jane learned that John has done a new will, leaving the house to his girlfriend.


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Reminder

Please fill out the feedback forms. Your input is essential in helping us to improve

future sessions.


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DisclaimerThe information presented during this session may have limited application to your particular

situation. The lawyers who are here this evening CAN provide legal information that

may give you a greater understanding of how the law might apply to your own situation. The

lawyers who are here this evening CAN NOT provide you with individual legal advice.


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property issues

Documents

legal information

student legal services

individual legal advice

property statement

matrimonial property

edmonton public library

parenting issues

divorce action