Dividing the family assets

One of the most common and important duties a family law lawyer performs is dividing up matrimonial property in an equitable manner.

One of the most common and important duties a family law lawyer performs is dividing up matrimonial property in an equitable manner.

While it is clear that the matrimonial home, household belongings, pensions, RRSPs and such are to be included, from time to time the question arises as to if the property is actually property at all and thus subject to a property settlement. The courts have often wrestled with this question.

Club memberships — A club membership such as to a golf club or tennis club can be quite expensive and the courts have generally viewed them as property. If the membership is obtained during the course of the marriage, it will likely be determined to be matrimonial property and have to be split in some way. A spouse may be ordered to continue to pay the fees so that the other may continue to enjoy the use of the membership; or a spouse may be ordered to obtain a membership for the other or be ordered to pay to the other an amount equal to obtaining a membership. A spouse may also be ordered to buy out the interest of the other for half the current value of the membership. Also of note for all sports fans is that it is likely that season tickets would be dealt with in a similar fashion.

Air miles — Again the courts have generally determined that air miles are property and those points accumulated throughout the marriage are subject to an equal division. The courts have most commonly ordered that any points accumulated are to be split equally between the spouses. But the courts have also reached more creative ways to deal with this issue. In one instance where the points had been depleted and evidence was provided regarding the value of each individual point, the court awarded a monetary award as compensation. In another, the court awarded the full amount of the points to the husband, since he was to bear the travel costs of his children to come visit him.

Pets — The issue of who retains the “custody” of a pet can be a contentious issue. Mr. Justice Wilson of the Court of Queen’s Bench of Alberta stated in a 2003 decision that “there is no property in a cat. Cats confer their presence on people, they do not become chattels.” However, a 2004 Ontario Superior Court decision seems to treat a dog as property, reviewing who bought the dog and where and with whom the dog resided with for the majority of the years and came to a determination of who “owned” the dog.

This illustrates some of the difficulties lawyers and the Courts have in determining a matrimonial property settlement. If you are unsure, your best bet is to either do some research or contact a lawyer and if the law is uncertain, you may have to leave it up to a Judge to determine.

Legally Speaking appears every second week in LIFE. It is intended for information purposes only. Readers with a specific legal problem should consult a lawyer. This week’s column was written by David Brant, of the Red Deer law firm Duhamel Manning Feehan Warrender Glass. Brant can be reached at 343-0812 or at www.reddeeraltalaw.com.