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.

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Glen Carritt organized a United We Roll Canada convoy around May 2019 that travelled in 2019. An independent review said he breached council code of conduct rules multiple times. (File photo by Advocate staff)
Former Innisfail town councillor breached code of conduct many times, says review

Consultants say 29 of 36 alleged breaches by Glen Carritt had merit

Members of the Red Deer RCMP downtown patrol monitor for drug activity and property crimes. (Advocate file photo).
Two peace officers are training to join Red Deer’s downtown police patrol unit

This “integrated” unit will be the first in Alberta

Students and staff at Gateway Christian School wore pink Wednesday in support of Pink Shirt Day, a worldwide anti-bullying initiative that was started in 2007. (Photo courtesy of Red Deer Public Schools)
Students, central Alberta community celebrate Pink Shirt Day

Mayor of Sylvan Lake Sean McIntyre supports anti-bullying cause

City of Red Deer has nearly doubled its active COVID-19 case count since Feb. 10 and has 75.6 per cent of the Central zone’s active cases. (File photo)
Another new high: Red Deer hits 574 active COVID-19 cases

Province reports 13 new COVID-19 deaths, 430 new cases

A homeless shelter was promised Red Deer to help the city deal with downtown issues. The city and province finally released a signed agreement on what the facility will offer, a year after a $7 million commitment was made for the project by the province. (Advocate file photo).
City and province take next step in bringing a 24/7 shelter to Red Deer

It will include a detox and counselling services

Meteor spotted over Edmonton, Alta., on Feb. 22, 2021 by several, who took to social media to share their surveillance camera captures. (@KixxAxe/Twitter)
VIDEO: Fireball meteor streaks across sky, spotted by early-morning risers in Alberta, B.C.

Videos of the quick streak of light flashing across the sky before 6:30 a.m. MST

Calgary Flames goaltender David Rittich (33) makes a save on Toronto Maple Leafs left wing Jimmy Vesey (26) as Flames' Christopher Tanev (8) and Joakim Nordstrom (20) defend during first-period NHL action in Toronto on Wednesday, February 24, 2021. THE CANADIAN PRESS/Frank Gunn
‘Misunderstood’ Nylander ties game late, scores winner as Leafs beat Flames 2-1 in OT

‘Misunderstood’ Nylander ties game late, scores winner as Leafs beat Flames 2-1 in OT

Team Canada skip Kerri Einarson yells to her sweepers at the Scotties Tournament of Hearts in Calgary, Alta., Friday, Feb. 19, 2021.THE CANADIAN PRESS/Jeff McIntosh
Young Quebec team in the hunt to join Einarson, Homan in Hearts’ championship round

Young Quebec team in the hunt to join Einarson, Homan in Hearts’ championship round

A crane is used to lift a vehicle following a rollover accident involving golfer Tiger Woods, Tuesday, Feb. 23, 2021, in Rancho Palos Verdes, Calif., a suburb of Los Angeles. Woods suffered leg injuries in the one-car accident and was undergoing surgery, authorities and his manager said. (AP Photo/Mark J. Terrill)
Golf without Woods? Battered leg brings it closer to reality

Golf without Woods? Battered leg brings it closer to reality

Montreal Canadiens head coach Claude Julien looks towards the ice as his team takes on the Ottawa Senators during second period NHL action in Ottawa on Tuesday, Feb. 23, 2021. The Canadiens have fired head coach Julien and associate coach Kirk Muller. THE CANADIAN PRESS/Sean Kilpatrick
Montreal Canadiens fire head coach Claude Julien, associate coach Kirk Muller

Montreal Canadiens fire head coach Claude Julien, associate coach Kirk Muller

Canada midfielder Sophie Schmidt (13) attempts a shot on goal during the first half of a SheBelieves Cup women's soccer match against Argentina, Sunday, Feb. 21, 2021, in Orlando, Fla. THE CANADIAN PRESS/AP-Phelan M. Ebenhack
Canadian women exit SheBelieves Cup on losing note, blanked 2-0 by Brazil

Canadian women exit SheBelieves Cup on losing note, blanked 2-0 by Brazil

Supporters pray outside court in Stony Plain, Alta., on Wednesday, Feb. 24, 2021, as a trial date was set for Pastor James Coates of GraceLife Church. He is charged with holding Sunday services in violation of Alberta's COVID-19 rules and with breaking conditions of his bail release. THE CANADIAN PRESS/Jason Franson
Trial date for jailed Alberta pastor charged with breaking COVID-19 health orders

Trial date for jailed Alberta pastor charged with breaking COVID-19 health orders

Alberta Premier Jason Kenney shakes hands with Jason Nixon, government house leader and environment minister, after Nixon is sworn into office in Edmonton on April 30, 2019. THE CANADIAN PRESS/Jason Franson
Alberta eyes recall legislation, focuses on COVID-19 aid in spring sitting

Alberta eyes recall legislation, focuses on COVID-19 aid in spring sitting

CFL commissioner Randy Ambrosie attends a a news conference in Surrey, B.C., on Thursday, February 28, 2019. The CFL faces more challenges in its 2021 return than it did last year when it was forced to cancel its season due to the COVID-19 pandemic. THE CANADIAN PRESS/Darryl Dyck
CFL will have to appease more levels of government to get 2021 protocols approved

CFL will have to appease more levels of government to get 2021 protocols approved

Most Read