Matrimonial Property: Date for Valuation

In Alberta, the Divorce Act of Canada is a Canadian statute which governs divorce, custody, child access, child support and spousal support across all Canada, while the Matrimonial Property Act is an Alberta statute that governs division of land, bank accounts, investments, pensions, RIFs, RRSPs, RESPs and other assets, generally for Alberta residents, either upon the granting of a divorce judgment or at a separate time which may be coupled with divorce proceedings.

Often separation of the parties as man and wife occurs a significant time before either an agreement is signed between the parties dividing matrimonial assets, or a Trial is held to order division of property. Although the law has usually held that division of property should be decided at Trial, in recent times there has been a debate in legal circles as to whether some property acquired by either the husband or the wife after separation of the parties, but before a Divorce Judgment is granted, should be included in the division of property.
In the case of Rands v Rands [2011] A.J. No. 1197 the court divided pension interests at the date of separation, not at the date of Trial.  The rationale of the court was that pension assets differed  in situations of long separations prior to Trial because ongoing contributions by one spouse during employment may continue during the separation while the other spouse makes no contributions. This means that any increase in value of the pension after separation is attributable only to the continuing contributions of the employed spouse.

The same judge in  Zama  v. Vanderzwaag [2016) A.J. No. 1367 divided RRSPs, a TFSA, and shares at the date of separation, ruling that the increased value of those assets after separation should attribute only to the husband.

However, a subsequent case Smith v. Smith [2015] A.J. No.1410, while referring to the Rands decision, declined to divide as of separation because there was not a significant difference in the value of pensions between the date of separation and the date of Trial.
At this time the law remains that in general assets will be divided at the time of Trial.  This means that spouses who acquire assets after separation, but before Trial, may be accountable for division of those assets. This is additional to assets acquired during their marriage and while they lived together."

Jim MacSween

Jim is a Partner with Rowanoak Law Office LLP.