Recent Proposals for Reform of Family Property Law
in the Common Law Provinces
Peter M. Jacobson*
Introduction
For a number of years the system of family property in common
law jurisdictions has been criticized by academics, practitioners and
women’s groups. In 1973 and 1974 the call for reform in Canada came
to a head with the almost notorious decision of the Supreme Court
in Murdoch-‘ and the publication of studies by three provincial law
commissions.2 The Ontario Law Reform Commission’s Report on
family property law contains an exhaustive study of the law and
*Associate Professor, Faculty of Law, McGill University.
‘Murdoch v. Murdoch [1975] 1 S.C.R. 423, (1973) 41 D.L.R. (3d) 367. But cf.
the more recent decision of the Alberta Supreme Court, Fiedler v. Fiedler
(1974) 6 W.W.R. 320. However, that decision was reversed on February 24,
1975 by the Appellate Division of the Alberta Supreme Court; [1975] 3 W.W.R.
681. It should be noted that the Ontario Legislature has recently enacted the
Family Law Reform Act, 1975, S.O. 1975, c.41 which is intended, inter alia, to
ameliorate the effect of the Murdoch case. However the question of the
spouses’ title to marital property is not dealt with by the legislation.
2 Ontario Law Reform Commission, Report on Family Law: Part IV, Family
Property Law (1974),
(hereinafter called Ontario Commission, Report on
Family Law); The University of Alberta, Institute of Law Research and Reform,
Working Paper, Matrimonial Property (1974), (hereinafter called Alberta Insti-
tute, Working Paper); Law Reform Commission of Saskatchewan, Third
Working Paper, Tentative Proposals for Reform of Matrimonial Property Law
(1974), (hereinafter called Saskatchewan Commission, Third Working Paper).
(Since this article was written, the university of Alberta Institute of Law
Research and Reform released its Report on Matrimonial Property, Oct. 1975
which superceded the Working Paper.)
Since the completion of this article, the Law Reform Commission of Cana-
da has produced its Working Paper No.8, Family Property (1975). The Paper
goes no further than the work of the other Commissions and it would not
seem useful to refer to it again. It might be noted that in so far as the
Paper describes the existing state of the law with regard to the kind of
contribution which the non-titled spouse must make in order to establish
a beneficial title (at 10), it ignores the effect of decisions such as Trueman v.
18 D.L.R. (3d) 109 (Alta S.C.A.D.); Falconer v. Falconer
Trueman (1971)
[1970] 3 All E.R. 449 (CA.) and Hazell v. Hazell [1972] 1 All E.R. 923 (C.A.).
Moreover, the Paper’s analysis of important questions, such as the effect of the
Murdoch case, concentrates on non-legal issues (at 2-3).
19751
REFORM OF FAMILY PROPERTY LAW
“recommends legislative changes … that will at times involve radical
departures from contemporary arrangements”? The Alberta Institute
of Law Research & Reform has circulated a comprehensive working
paper, and the Saskatchewan Commission completed two mini-
working papers, followed by a third working paper which makes
tentative proposals for reform. This article offers an evaluation of
the three studies which will be compared with the views of the
British Law Commission and with some aspects of the matrimonial
regimes under the law of Quebec.
From the Commissions’ studies three possible areas of reform
emerge. They are legislation conferring a judicial discretion to alter
property rights in disputes between spouses, the creation of a prin-
ciple of co-ownership of the matrimonial home, and the establishment
of a matrimonial regime similar to Quebec’s partnership of acquests.4
In order to understand the proposed reforms it will first be necessary
to look briefly at the present law and the criticism levelled against it.
The Existing Law
As the Ontario Commission observed, “[ilt is, of course, impossi-
ble to convey the richness and intricacy of this body of law in any-
thing less than a full treatise”,5 but a number of salient points must
be noted.
Under the ancient common law doctrine of unity of legal person-
ality, the wife lacked the capacity to own property and make
contracts so that she was completely dependent on her husband, upon
whom was imposed the duty of maintaining herY If the husband
failed to provide for his wife, she was entitled to pledge his credit
for necessaries such as food and clothing.7 She was also given an
inchoate right of dower, which was a life estate in one third of her
deceased husband’s lands.” Thisright was intended to protect the
married woman if she were widowedY
During the sixteenth century, the married woman’s proprietary
incapacity was partially overcome by the development, in the Court –
of Chancery, of the doctrine of the wife’s separate estate. This enabled
3 Ontario -Commission, Report on Family Lav, supra, f.n2, 3.
4 S.Q. 1969, c.77; arts.1266c-1267d C.C. For an extended discussion, see the
article by Freedman in this Special Issue of the McGill Law Journal.
Ontario Commission, Report on Family Law, supra, f.n.2, 17.
OBromley’s Family Law 4th ed. (1971), 401.
7Ibid.
8 Ibid., 348.
9 Ontario Commission, Report on Family Law, supra, f.n.2, 26.
McGILL LAW JOURNAL
[Vol. 21
her, with the interposition of trustees, to hold and dispose of property
as if she were a femme sole.’0 The necessity for the creation of a
trust was removed by the Married Women’s Property Acts of the
late nineteenth century” which virtually destroyed the unity of legal
personality and established the norm of separation of property in
Anglo-Canadian common law.11a It should be emphasized that this
legislation was designed mainly to protect the earnings and inherited
wealth of married women, and no one had considered what effect
marriage should have on the husband’s property or on property
acquired by the spouses through their joint efforts.’2 This shows
the fundamental difference between the common law system of
separation of property, which has not been altered since the Married
Women’s Property legislation, and the Civil Law approach of the
regime matrimonial. Under the common law, marriage does not
affect the ownership of property between the spouses, 3 but in Civil
Law jurisdictions marriage has a direct effect on the property rights
of the parties. 14
Thus in the common law provinces, separation of property
places each spouse in the position of a single person for the purpose
of acquiring and dealing with property, including property relations
with third parties. This has significant advantages because it safe-
guards the freedom and independence of the spouses and facilitates
business transactions. However, if the marriage breaks down, the
system of separation of property tends “to treat the husband and
wife as strangers within an abstract economic unit that is being
wound up”.15 The erstwhile advantage of the spouses’ proprietary in-
dependence then has the paradoxical effect of negating a fair division
of family property, for the norm of separation correlates ownership
of property with the establishment of legal title.’ Since in Canadian
10 Bromley, supra, f.n.6, 351.
“E.g., Married Women’s Property Act, 1882, 45-46 Vict., c.75, s.l(2) (U.K.);
Married Women’s Property Act, R.S.O. 1970, c.262.
“a The Family Law Reform Act, 1975, S.O. 1975, c.41, continues the same
policy by affirming that married persons have separate legal personalities
for all purposes of the law of Ontario, except for determination of domicile
and for the wife’s right to pledge her husband’s credit for necessaries which is
preserved.
12 Katm-Freund, Recent Legislation on Matrimonial Property (1970) 33
M.L.R. 601, 601-602.
13 It creates only the duty of support and the inchoate right of dower.
14 Civil Code Revision Office, Report on Matrimonial Regimes (1968), 2.
15 Ontario Commission, Report on Family Law, supra, f.n.2, 6.
‘0 Pettitt v. Pettitt [1970] A.C. 777 (H.L.); Gissing v. Gissing [1971] A.C. 886
(H.L.); Thompson v. Thompson [1961] S.C.R. 3; Murdoch v. Murdoch, supra,
f.n.1.
1975]
REFORM OF FAMILY PROPERTY LAW
society the husband usually contracts for the purchase of the sub-
stantial and durable assets, he thereby gains the legal right of
ownership. 17 The principles of separation of property seem to require
the non-titled spouse to establish a proprietary right through direct
financial contributions to the purchase, without taking into account
any indirect contributions, whether in the form of money or labour.18
Furthermore, the role of manager of the household, which is usually
filled by the wife, gives no beneficial interest in property acquired
by the other spouse.19 Yet in the oft quoted aphorism of Sir Jocelyn
Simon “[t]he cock can feather the nest because he does not have
to spend most of his time sitting on it”. 20 It may therefore be said
that while separation of property achieves for each spouse a theoret-
ical equality of power to acquire property, “the usual division of
labour within a majority of marriages results in the husband being
the breadwinner”,” and there is accordingly an unequal opportunity
to exercise the power.2
The common law responded to this economic dependence of the
wife by adding to the somewhat ineffectual remedy of the wife’s
agency of necessity, 3 a statutory foundation for the husband’s obli-
gation of maintenance.2 4 This had the effect of allowing the wife a
“suppliant’s request for maintenance” 25 rather than the proprietary
share of a partner in the marriage. As one distinguished commentator
has observed:
The link between the law of matrimonial property and the law of matri-
monial maintenance is as close today as ever it was, but how can one
17 Ontario Commission, Report on Family Law, supra, f.n.2, 13.
‘SMurdoch v. Murdoch, supra, f.n.1. Cf. Trueman v. Trueman (1971) 18
D.L.R. (3d) 109 (Alta S.C.A.D.). But the common division of labour between
husband and wife and their inevitable intermingling -of assets led the British
Law Commission to conclude that the present law is both unfair and uncertain;
see The Law Commission, First Report on Family Property: A New Approach
(1973), no.52 (hereinafter called Law Com. no.52), 7 and 9.
19 Pettitt v. Pettitt, supra, f.n.16, 794 per Lord Reid; Rooney v. Rooney
(1969) 68 W.W.R. 641 (Sask. Q.B.).
20 Quoted by Lord Hodson in Pettitt v. Pettitt, supra, f.n.16, 811.
21 Ontario Commission, Report on Family Law, supra, f.n.2, 5.
22 The Law Commission, Published Working Paper No.42, Family Property
Law (1971), 7.
23 Bromley, supra, f.n.6, observes that “tradesmen were naturally reluctant
to give credit to a man who had deserted his wife and left her penniless”. The
doctrine of agency of necessity was abolished in England by the Matrimonial
Proceedings and Property Act, 1970, c.45, s.41(1).
24 E.g., The Judicature Act, R.S.O. 1897, c.51, s.34 as extended by R.S.O. 1970,
c.228, s.2; The Matrimonial Causes Act, R.S.O. 1970, c.265; The Deserted Wives’
2nd Children’s Maintenance Act, R.S.O. 1970, c.128.
25 Ontario Commission, Report on Family Law, supra, f.n2, 6.
McGILL LAW JOURNAL
(Vol. 21
seriously assert that the supply by a husband of the means to cover
these elementary needs can be an equivalent to the wife’s economic
contribution (in whatever form) where a large part of the contribution
is destined for the acquisition of durable goods, and especially of a home
for the family?26
Moreover, the inadequacy of the law of maintenance is compound-
ed by its discriminatory nature. Firstly, with the exception of the
Divorce Act,27 only the wife is entitled to obtain maintenance.”
Secondly, again excepting the Divorce Act,29 the wife who has been
guilty of adultery is precluded from an award of maintenance, 30
so that “the law adds an element of financial coercion based upon
individual behaviour or ‘worthiness’ that is applied only against the
wife” 31 Even the agency of necessity is barred where the wife has
committed adultery or desertion 32 and she may also lose her dower
rights. ‘
The foregoing summary, with the exception of dower, deals only
with the law applicable during marriage. It is also necessary to refer
briefly to the laws of succession since many marriages are terminated
by the death of a spouse. In that respect, the common law provinces
have generally made adequate provision for widows. Where the
husband dies intestate, the wife receives a preferential share of a
substantial portion of the estate 4 together with at least one third,
26 Kahn-Freund, supra, f.n.12, 606.
27R.S.C. 1970, c.D-8, s.11(1) entitles the court to award payment of main-
tenance by either husband or wife. A wife was so ordered in Cohen v. Cohen
(1971) 16 D.L.R. (3d) 241 (Ont. C.A.).
28 E.g., The Deserted Wives’ and Children’s Maintenance Act, R.S.O. 1970,
c.128, s.2(1). On the other hand in British Columbia and Alberta, both husbands
and wives are eligible for alimony and maintenance; see Family Relations
Act, S.B.C. 1972, c.20, ss.12, 15(e) and 18 and Domestic Relations Act, R.S.A.
1970, c.113, ss.16, 18 and 23 as am. by The Attorney General Statutes Amendment
Act, 1973 (No.2), S.A. 1973, c.61. See also Civil Code Revision Office, Report on
the Family Part I (1974) (hereinafter called C.C.R.O., Report on the Family),
439-440, 443444.
29 Supra, f.n.27.
so E.g., Deserted Wives’ and Children’s Maintenance Act, supra, f.n.28, s.2(4);
The Matrimonial Causes Act, supra, f.n.24, s.2(1). This bar is not found in the
legislation of British Columbia and Alberta; see Family Relations Act, supra,
f.n.28, ss.5, 12 and 25(1) (b) and Domestic Relations Act, supra, f.n.28, s.23.
31 Ontario Commission, Report on Family Law, supra, f.n.2, 6.
32 fBromley, supra, f.n.6, 402.
33The Dower Act, R.S.O. 1970, c.135, s.8.
3 4 1n Ontario the surviving spouse obtains a preferential share of the first
$50,000 of the estate; see The Devolution of Estates Amendment Act, S.O.
1973, c.18. In Alberta, the widow’s preferential share is $20,000; see The
Intestate Succession Act, R.S.A. 1970, c.190, s.3(1); in Saskatchewan it is
$10,000; see The Intestate Succession Act, R.S.S. 1965, c.126, s.4(1).
1975]
REFORM OF FAMILY PROPERTY LAW
and at most the whole of the balance, depending on the jurisdiction
and whether there are surviving children 5 However, the law has not
imposed any fixed entitlement for the widow where her husband dies
leaving a wilL36 This reflection of the principle of freedom of
testation theoretically allows a husband to disinherit his wife, but
the provinces have enacted legislation which entitles a spouse to
apply to the court when the testator has not made adequate provision
in the will for maintenance of the survivor.3 7 Once this is established,
the court “may make an order charging the whole or any portion of
the estate … with payment of an allowance sufficient to provide such
maintenance”3 While this may be criticized as mere maintenance
rather than a share of the capital, it should be noted that through
its power to award lump sum settlements,39 the court can effectively
alter the capital provisions of the will.
Nevertheless, as the Ontario Law Reform Commission stresses,
there is “a statutory penalty for adultery or desertion by married
women”4 which may remove the benefits conferred by the succession
legislation.4 1 There is no parallel disentitlement against husbands so
that once again, a form of economic discrimination based on chastity
is perpetrated on married women.
In sum:
The law must be changed … primarily because the social and economic
assumptions
increasingly
obsolescent and its results are often unjust. The need is not only for
a rational system, but also for one that is fundamentally fair. 42
that furnish its foundations are becoming
The most serious injustices relate to the law of ownership of property
where, as shown above, the courts’ reliance on rigid property princi-
ples to the exclusion of any concept of the property of the family
unit 43 has made remedial legislation an imperative.
35 See the Devolution of Estates Act, R.S.O. 1970, c.129; The Intestate Succes-
sion Act, (Alta), ibid.; The Intestate Succession Act, (Sask.), ibid.
36 Both the British Law Commission and the Ontario Commission have
recommended against the introduction of fixed rights of inheritance; see Law
‘Com. no.52, supra, f.n.18, 15 and Ontario Commission, Report on Family Law,
supra, f.n.2, 171.
37E.g., The Dependants’ Relief Act, R.S.O. 1970, c.126, ss.l(b) and 2(1).
38 Ibid., s2(1).
39 Ibid., s.2(2).
40 Ontario Commission, Report on Family Law, supra, f.n.2, 31.
41 The Dependants’ Relief Act, supra, f.n.37, s.9; The Dower Act, R.S.O. 1970,
c.135, s.8. The widow also loses her preferential share and distributive share
of real property under the Devolution of Estates Act, supra, f.n.35; see
MacWilliams v. MacWilliams (1962) 32 D.L.R. (2d) 481 (Ont. C.A.).
42Ontario Commission, Report on Family Law, supra, f.n.2, 15.
43 Infra, f.nA8.
McGILL LAW JOURNAL
[Vol. 21
Proposals for Reform
1. Judicial Discretion
During the nineten fifties and sixties the English Court of Appeal
engrafted upon s.17 of the Married Women’s Property Act 44 a judicial
discretion to create and vary property rights between spouses. ”
The courts were therefore able to do justice for the parties by avoid-
ing the rigid property law requirement that title depends upon proof
of a direct financial contribution. The principles which the courts
enunciated were these:
First, that cases between husband and wife ought not to be governed by
the same strict considerations
to the
ascertainment of the respective rights of strangers when each of them
contributes to the purchase price of property, and, secondly, that the
old-established doctrine that equity leans toward equality is peculiarly
applicable… .46
… as are commonly applied
This came to be known as the -doctrine of “family assets” because
the principles were applied only to “things intended to be a continu-
ing provision for them [the spouses] during their joint lives, such
as the matrimonial home and the furniture in it”.47 While the
doctrine may have achieved a just solution of family disputes, it
attempted to create property rights without regard to the strict
principles of property and trust law; it was therefore rejected by
the Supreme Court of Canada and the House of Lords. 48
Nevertheless, the judicial demise of the “family assets” doctrine
was quickly followed in England by legislation which reinstated
and expanded the basis of the approach.4 9 Similar legislation has
44 Supra, f.n.11. For the statutory equivalent in Ontario, see The Married
Women’s Property Act, supra, f.n.l1, s.12(1) which provides that:
“In any question between husband and wife as to the title to or posses-
sion of property, either party … may apply in a summary way to a judge
of the Supreme Court … and the judge may make such order … as
he thinks fit….”
45 See, e.g., Rimmer v. Rimmer [1952] 2 All E.R. 863; Fribance v. Fribance
[1957] 1 All E.R. 357; Hine v. Hine [1962] 3 All E.R. 345.
46 Rimmer v. Rimmer, ibid., 870 per Lord Romer.
47 Fribance v. Fribance, supra, f.n.45, 359.
4 8 Thompson v. Thompson, supra, f.n.16, 14; Murdoch v. Murdoch, supra, f.n.1;
Pettitt v. Pettitt, supra, fn.16; Gissing v. Gissing, supra, f.n.16.
49 Matrimonial Proceedings and Property Act, 1970, c.45, ss.4 and 5 (U.K.). See
now Matrimonial Causes Act, 1973, c.18, ss.24 and 25 (U.K.). However, it should
be realised that proceedings cannot be instituted unless they arise in the
context of divorce, nullity or judicial separation. See generally, Lesser, The
Acquisition of inter vivos Matrimonial Property Rights in English Law (1973)
23 U.of T. L.. 148, 185.
19751
REFORM OF FAMILY PROPERTY LAW
existed in New Zealand since 1963.50 The Saskatchewan Commission
recommends, in addition to other reforms, that its legislature confer
discretionary powers on the courts,51 but the Alberta Commission,
despite careful analysis of the possibility, has not reached a final
opinion.52 The Ontario Commission preferred to by-pass any discus-
sion of the discretionary approach and opted for a more far-reaching
reform through creation of a matrimonial regime.5
Reform by way of judicial discretion is well illustrated in the
English Matrimonial Causes Act, 1973 .1 Section 24 empowers the
court to make orders for the transfer or settlement of property in
relation to the grant of a decree of divorce, nullity or judicial sepa-
ration. Section 25 requires the court to exercise its discretion having
regard to all the circumstances of the case including a series of spe-
cified factors.55 Of these, the most important is probably s.25 (1) (f),
“the contributions made by each of the parties to the welfare
of the family, including any contribution made by looking after the
home or caring for the family”..
The court is also mandated by s.25
to exercise those powers as to place the parties, so far as it is practicable
and, having regard to their conduct, just to do so, in the financial posi-
tion in which they would have been if the marriage had not broken
down….
The early cases moved hesitantly in implementing the reforms, 5
but in 1973 the Court of Appeal established clear working principles.
In Wachtel v. Wachtel 57 Lord Denning observed that the Act was
5o Matrimonal Property Act, New Zealand Statutes, 1963, No.72.
51 Saskatchewan Commission, Third Working Paper, supra, f.n.2, 5. The
Saskatchewan legislature has now responded with an amendment to the
Married Women’s Property Act, R.S.S. 1965, c.340, which confers a discretion
on the court to alter existing property rights; see S.S. 1974-75, c.29.
52 Alberta Institute, Working Paper, supra, f.n.2, 40-47.
53 Ontario Commission, Report on Family Law, supra, f.n.2, 52.
54 Supra, f.n.49.
55 They are found in s.25(1) as follows:
(a) income and financial resources of each party;
(b) financial needs and responsibilities of each party;
(c) the family’s standard of living;
(d) age of each party and duration of marriage;
(e) any physical or mental disability;
(f) contributions to the welfare of the family;
(g) value to either party of any benefit that will be lost by dissolution of
marriage.
56 Cretney, Financial Provision after Wachtel v. Wachtel (1973) 36 M.L.R. 653.
57 [1973] 1 All E.R. 829.
McGILL LAW JOURNAL
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“a reforming statute designed to … accord to the courts the widest
possible powers in readjusting the financial position of the parties”.
He noted that the above mentioned section 25(1)(f) was the legis-
lature’s answer to the justifiable complaint that one spouse, usually
the wife, received no share in the other’s property even though the
wife’s performance of domestic chores released the husband for
gainful employment. 9
In calculating the wife’s share, Lord Denning said that the courts
should work from a starting point of an allocation to her of one third
of the family’s combined assets.60 This division is based on the
traditional practice of the divorce courts,”‘ and while it creates less
than a full egalitarian solution, it was supported on the basis that
most wives want a share of capital assets as well as future mainte-
nance62 It would therefore not be fair to impose a continuing support
obligation on the husband in addition to depriving him of half his
capital.l Nevertheless it must be emphasized that the one third
division is not a rule; it is simply a starting point, for “the essence
of the legislation is to secure flexibility to meet the justice of parti-
cular cases, and not rigidity”. 4
Although the Act requires the court to have regard to the conduct
of the spouses, 5 this does not mean that a judge should hold a
“post-mortem” to see who killed the marriage.6 This provision, which
applies equally to husband and wife, means that a spouse will only
be disentitled to an award through conduct that is “both obvious
5s Ibid., 836.
59 Ibid., 838. The case was decided under the Matrimonial Proceedings and
Property Act, 1970, supra, f.n.49, and his Lordship was referring to s.5(1)(f)
of that Act which was the predecessor of s.25(1) (f) of the Matrimonial Causes
Act, 1973, supra, f.n.49.
O0 Supra, f.n.57, 842.
01 But see Kershaw v. Kershaw [1964] 3 All E.R. 635, 637 per Sir Jocelyn
Simon P.
02 Wachtel v. Wachtel, supra, f.n.57, 840. However Lord Denning also observed
that:
“If we were only concerned with the capital assets of the family, and
particularly with the matrimonial home, it would be tempting to divide
them half and half … . That would be fair enough if the wife afterwards
went her own way, making no further demands on the husband. It would
be simply a division of the assets of the partnership. That may come in the
future.” (839-840).
03Ibid.
6Ibid., 839.
65 Matrimonial Causes Act, 1973, supra, f.n.49, s.25(1).
66 Wachtel v. Wachtel, supra, f.n.57, 835.
1975]
REFORM OF FAMILY PROPERTY LAW
and gross”.6 That phrase was subsequently explained by Bagnall J.
in Harnett v. Harnett 68 as follows:
The party concerned must be plainly seen to have wilfully persisted in
conduct … calculated to destroy the marriage in circumstances in which
the other party is substantially blameless. I think that there will be
very few cases in which these conditions will be satisfied.p
In a second important Court of Appeal decision, Trippas v.
Trippas,’0 the wife was not seeking a transfer of property but request-
ed a lump sum settlement under the predecessor of section 23 of the
Matrimonial Causes Act, 1973. This provision is subject to the
discretionary factors contained in section 2 5 .7a The husband and
wife, who were married in 1941, split up in 1968, each going off to
live with a new partner. The husband was co-owner of a family
business which he had inherited from his father, and in 1969 the
business was sold, the husband receiving 80,000 in cash and 95,000
in shares. The sale had been under discussion before the family’s
separation and the husband had promised that on its completion he
would “settle a lump sum on each of us and have my freedom”.7’1
In fact he gave 5,000 to their two sons but nothing was paid to
the wife.
Under section 25(1) (g) of the Matrimonial Causes Act, 1973 the
court is required to take account of:
the value to either of the parties … of any benefit (for example, a pension)
which, by reason of the dissolution… of the marriage, that party will
lose the chance of acquiring.
Furthermore, under section 25(1), as noted above, the court must
try to place the parties in the financial position they would have
occupied if the marriage had not broken down. In applying these
provisions the Court of Appeal awarded Mrs Trippas 10,000 on the
basis that if the marriage had continued she had a good chance of
obtaining a capital payment from the sale of the business.72 In that
respect her adultery was irrelevant and in any event it was not
“obvious and gross”.
One commentator has summed up the result by saying:
In effect, therefore, the Act establishes a presumption that a wife has
some interest (albeit in property lawyers’ language a mere spes) in her
67 Ibid.
68 [1973] 2 All E.R. 593.
69 Ibid., 601.
70 [1973] 2 All E.R. 1 (C.A.).
70a Supra, f.n.55.
71 Supra, f.n.70, 4.
72 Ibid., 5 and 8.
McGILL LAW JOURNAL
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husband’s capital assets, future earnings and pension provision, even
during the currency of the marriage.7Y3
However, by contrast with Wachtel where the wife received approxi-
mately a one third share of the matrimonial home, Mrs Trippas was
granted roughly 6% of her husband’s business capital. Thus the
quantum of the wife’s potential property interest seems to be deter-
mined by “concentrating the assessment on ‘family assets’, rather
than the husband’s investment capital”. 74
A further point regarding the Matrimonial Causes Act, 1973
should be made. In both Wachtel and Trippas the predecessor of this
Act was applied to persons married many years before the legislation
came into effect. The Act therefore introduced rules which retro-
spectively ameliorate the injustices wrought by the law of separation
of property in existing marriages without unfairness to the spouses.
The “family assets” doctrine was legislatively enshrined7″ in New
Zealand in 1963 by section 5(2) of the Matrimonial Property Act,70
which granted the court a discretion to sell or divide the spouses’
property or to transfer one spouse’s property into their common
ownership. Under section 5(1), jurisdiction arises in any question
between husband and wife as to title, possession or disposition of
property and thus, unlike its English counterpart, the power is not
confined to proceedings for divorce, nullity or separation. However,
the factors to be taken into account in the exercise of the court’s
power are not as fully detailed as in the English Act. Under section
6(1), when the dispute relates to the matrimonial home, the court
“shall … have regard to the respective contributions of the husband
and wife to the property in dispute177 and in other cases it “may” do
so. This appears to create an unjustifiable distinction between the law
governing the matrimonial home and other property.78 A 1968 amend-
ment to the Act provided that wrongful conduct of a spouse is not
to be taken into account where it is not related to the acquisition
of the disputed property,79 but the courts still seem to be favourably
inclined towards an “innocent” spouse.80
73 Cretney, supra, f.n.56, 654. As Bagnall J. put it in Harnett v. Harnett,
supra, f.n.68, 601, “[s]he must be treated as potentially entitled to benefit at
some time from her husband’s capital assets”.
74 Cretney, ibid., 655.
75 E. v. E. [1971] N.Z.L.R. 859, 872.
7- Supra, f.n.50.
77 The contributions may be “in the form of money payments, services,
7 8 E.g., E. v. E., supra, f.n.75.
79 Matrimonial Property Amendment Act, New Zealand Statutes, 1968, No.61,
prudent management, or otherwise howsoever”; s.6(1).
s.7.
80 E.g., E. v. E., supra, f.n.75.
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The only Canadian jurisdictions to have enacted a form of dis-
cretionary legislation are British Columbia, the Northwest Territories
and, more recently, Saskatchewan.8,a In British Columbia, section
8(1) of the Family Relations Act, 197281 provides:
Where the court makes an order for dissolution of marriage … and it
appears that a spouse is entitled to any property, it may… make any
order that, in its opinion, should be made to provide for the application
of all or part of the property, including settled property, for the benefit
of either or both spouses ….
82
No guidelines for the exercise of the discretion are contained in the
Act. On the other hand, in the Northwest Territories, the court is
expressly required to take account of “the respective contributions
of the husband and wife whether in the form of money, services,
prudent management, caring for the home and family…”.8a
Under the Divorce Act, the court may order the husband or wife
to pay a lump sum to the other spouse for maintenance,
… if it thinks it fit and just to do so having regard to the conduct of
the parties and the condition, means and other circumstances of each of
them… 83
While this provision does not authorize the transfer of property
belonging to the spouses, it gives the court a substantial discretion
to use the lump sum payment effectively to enlarge one spouse’s
interest in the other’s property.2 a After all, payment of a capital
sum is usually as good as transfer of property in specie and it is
submitted that more use should be made of this provision. However,
unlike the English Matrimonial Causes Act, 1973, this power to award
a lump sum payment has not been seen by the courts as a primary
form of order “I and there is nothing which requires the court to have
80a See S.S. 1974-1975, c.29. The legislation differs from England’s Matrimonial
Causes Act, 1973, supra, f.n.49, in that it does not contain guidelines for the
court’s exercise of its discretion.
81 Supra, f.n.28.
82 In Stevenson v. Stevenson (1974) 44 D.L.R. (3d) 762 it was argued that
this provision did not alter the substantive law of separation of property but
the court held that:
“… s.8 confers upon the court a … discretion to make an order that
allocates property held in the name of either or both spouses between
them …
in a just and equitable way according to all the circumstances.
Section 8 thereby altered the rigours of the common law .. .”. (764-765).
82aMatrimonial Property Ordinance, N.W.T. 1974, 3rd Sess., c.3, s.28(4).
83 R.S.C. 1970, c.D-8, s.11(1).
S3a E.g., Fiedler v. Fiedler, supra, f.n.1. The Appellate Division subsequently
ruled that the case should be referred back to the trial judge for reconsidera-
tion but it did not say that the award of a lump sum was improper; ibid.
in Mendes da Costa
84 MacDougall, “Alimony and Maintenance”
(ed.),
Studies in Canadian Family Law (1972), vol.1, 282, 321-323.
McGILL LAW JOURNAL
[Vol. 21
regard to the spouse’s contribution to the family welfare. It must
be emphasized that any enactment creating a discretion to alter
existing property rights may be ultra vires the Parliament of Cana-
da.85 Accordingly, even if the transfer of property were to be made
possible in relation to divorce, the power probably would have to
be contained in provincial legislation.
As the Alberta Commission observed, the advantage of a dis-
cretionary division of property is that “it enables the court to look
at the merits of the particular case”.”6 This form of legislation is
based on
… the contribution theory for the division of family property rather than
the status theory: the wife is regarded as earning a share in family assets
by her contribution to the family welfare… rather than by the mere fact
of marriage.87
This flexibility compares favourably with a “rigid universal rule
[that] treats the deserving and undeserving in the same way . ..
88
It should be noted that if the husband requests a share in his wife’s
assets he must also demonstrate the requisite contribution.89 More-
over, while moral conduct may disentitle a spouse in exceptional
circumstances, 0 that provision contributes to the aim of flexibility.
Unlike the present law, it operates equally against both spouses.
However the discretionary legislation has one major short-
coming.91 There is no presumption that either spouse will get a de-
fined share of property accumulated during the marriage even if he or
she makes a full contribution. The leading cases in the English con-
85 Cf. Zacks v. Zacks [1973] S.C.R. 891 which held that the authority to award
maintenance under the Divorce Act, supra, f.n.27, s.11, is ancillary to juris-
diction in divorce and therefore within the legislative competence of the
Parliament of Canada, British North America Act, 1867, 30-31 Vict., c.3,
s.91(26) (U.K.). It is questionable whether an authorization to divide the
property of the spouses would be regarded as necessarily ancillary to divorce.
86 Alberta Institute, Working Paper, supra, f.n.2, 45.
87 Cretney, supra, f.n.56, 655.
88 Alberta Institute, Working Paper, supra, f.n.2, 45.
89 Sections 24 and 25 of the Matrimonial Causes Act, 1973, supra, f.n.49, apply
equally to both spouses.
90 Supra, f.n.69.
91 The Alberta Institute concluded that
“[t]he disadvantages are that the vesting of a discretion in the court
invites ligitation with the expense, and sometimes bitterness, that go
with it; and that different judges may exercise their discretion in markedly
different ways. Another point is that the wife does not have from the
beginning an assurance as to the precise extent of her interest …. More-
over, it may invite each party to keep a record of contributions and
disagreements ….
1975]
REFORM OF FAMILY PROPERTY LAW
text illustrate that where a wife looks after the home and family, she
has potential interests of one third of the household assets plus
maintenance and a smaller percentage of investment capital, at least
where the latter is a large amount.92 In sum therefore, marriage only
potentially affects property, and while the wife’s domestic chores
may create what is almost a partnership in the “family assets”, there
is far less than a full partnership in other property. The “usual
division of labour”‘9 2a in the family therefore continues to enure to the
husband’s advantage.
2. Deferred Sharing of Property
By contrast with the reform of the matrimonial property system
through the creation of a judicial discretion, the adoption of a matri-
monial regime, as proposed by the Ontario Commission, fundamen-
tally alters existing norms since it causes marriage to have a direct
effect on the spouses’ property rights. The proposed regime would
apply to all marriages after the date of the appropriate legislation,
but the spouses would be able to avoid it if they elected to have their
property rights governed by the law of separation of property or the
special provisions of, a marriage contract.9 3 The Alberta Institute
and the Saskatchewan Commission have considered the Ontario
scheme, with Alberta reaching no final conclusions on its advisa-
bility,94 and Saskatchewan recommending its adoption in addition
to the discretionary power of division of property.”
92 Wachtel v. Wachtel, supra, f.n.57; Trippas v. Trippas, supra, f.n.70.
92a Supra, f.n.21.
93 Ontario Commission, Report on Family Law, supra, f.n.2, 125.
The Ontario Commission recommends that spouses who wish to elect out of
the regime should be able to choose one of the following:
a) separation of property;
b) subject to the Commission’s recommendations
regarding choice of
law, the property regime of the habitual residence of the husband or
wife at time of marriage;
c) special contract covering particular terms or property relations; ibid.
Persons who did not wish to be subject to the statutory regime would be
required to make a statutory declaration and register it with the Registrar
General of Ontario; ibid., 126. Spouses would also be able to change their
property relations after marriage but any change from the statutory regime
to that of separation of property would require a court application; ibid., 127.
94 Alberta Institute, Working Paper, supra, f.n.2, 68.
95 Saskatchewan Commission, Third Working Paper, supra, f.n.2, 5. It also
recommended that the principle of co-ownership of the matrimonial home be
adopted; ibid.
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The matrimonial property regime proposed by the Ontario Com-
mission reflects its view that marriage is an economic partnership 6
The regime, which is similar to Quebec’s partnership of acquests, 1
draws on the best features of the laws governing separation and com-
munity of property,98 while avoiding the inherent, pitfalls of both
systems 9 As already noted, separation of property has the advantage
of allowing separate administration and ownership of property
during marriage but it causes inequities by continuing the separation
upon dissolution of the union. Community of property, on the other
hand, “ensure[s] substantial equality between the spouses in relation
to property, regardless of the division of labour between them”. 1′
This enables an equitable partition of property to be made on termi-
nation of the marriage, but the community regime has certain de-
tracting features which occur while the marriage is in force. The
principal difficulties are firstly, that community of property requires
common ownership of property by both spouses throughout the
marriage, with a consequent problem as to which spouse should
administer the common fund of property. Secondly, the creation of
the common fund and its separation from other property belonging
to the spouses causes difficulties with respect to allocation of
property for payment of debts. 1 1
The system of deferred sharing of property conveniently combines
separate ownership and administration during the marriage as in
separation of property, with an approximately equal division upon
termination as in community. 10 2 Moreover, the most critical periods
in the spouses’ property relations occur at the breakdown of marriage
or death of one partner and the system of deferred sharing has the
advantage of becoming operative on those very contingencies. 1 3
Under the Ontario Commission’s proposed regime, each spouse’s
share in the net gains realized by the family during marriage would
be achieved through a money payment called “the equalizing claim”
which is a personal claim in debt and not a right against specific
96 Ontario Commission, Report on Family Law, supra, f.n.2, 49.
97 Supra, f.n.4.
98 Community of property regimes are found in some states of the U.S.A.,
e.g., Arizona, California. It is available in Quebec as one of the alternative
regimes to partnership of acquests; see art.1268 C.C.
99 Ontario Commission, Report on Family Law, supra, f.n.2, 52.
100 Ibid., 50.
101 Ibid.
102 Ibid., 55. See also, the Commission’s reference to the Scandinavian regimes
on which the system of deferred sharing is based; ibid., 51.
103 Ibid., 55.
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REFORM OF FAMILY PROPERTY LAW
assets.-“‘ Its calculation involves the following steps: 10 Firstly, each
spouse’s total assets are separately valued and all existing liabilities
are deducted. This figure represents the net estate of each spouse.
Secondly, their residuary estates are established by deducting from
each net estate the net value of property owned at the date of
marriage0 0 and the net value of property acquired during the
marriage gratuitously from a third party.0 7 Thirdly, the residuary
estates of husband and wife are added together to show “the total
financial product of the marriage”,lTa of which each partner is
entitled to a half share. Thus the final step is to divide the total
financial product in half and subtract therefrom the amount of the
smaller residuary estate. The balance is “the equalizing claim” and
is payable from the spouse with the larger residuary estate to the
other spouse. The spouses would be required to produce an inventory
disclosing all relevant property values. 08
The system is best understood by looking at an example: At
the date of marriage Mr X had assets totalling $7,000 and debts of
$2,000. Mrs X had $1,000 worth of assets and no debts. Upon dis-
solution of their marriage Mr X had $40,000 in assets and $10,000 in
debts while Mrs X’s assets amounted to $12,000 with $3,000 in debts.
During the marriage Mr X received a legacy of $6,000 from his uncle
and Mrs X was given $5,000 by her father.
Mr X’s net estate is $30,000, that is, total assets of $40,000 minus
$10,000 debts. Mrs X’s net estate is $9,000, that is, total assets of
$12,000 minus $3,000 debts.
Mr X’s residuary estate is $19,000 made up of the net estate of
$30,000 minus $11,000 representing the net value of his ante-nuptial
property ($5,000) and the legacy received during marriage ($6,000).
Mrs X’s residuary estate is $3,000 made up of -the net estate of $%000
minus $6,000 representing the net value of her ante-nuptial property
($1,000) and the gift received during marriage ($5,000).
The total financial product is $22,000, calculated by adding to-
gether the two residuary estates of $19,000 and $3,000; each spouse
is entitled to an equal half-share, that is, $11,000. Mrs X has a resi-
duary estate of only $3,000 which, being the smaller of the two, is
1- Ibid.
‘O5 Ibid.,. 57.
100 The deductible value of ante-nuptial property could not be less than
the spouse’s net worth at the time of marriage; ibid., 73.
107The value would be calculated as at the date of receipt; ibid., 57.
160a Ibid.
108 Ibid., 78.
McGILL LAW JOURNAL
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then deducted from $11,000 to give her an equalizing claim of $8,000
against Mr X’s estate.
It should be noted that the equalizing claim is potentially a means
for sharing both gains and debts.’0 9 However the Ontario Commis-
sion recommended against sharing some kinds of debts and losses.
In this regard the most controversial provision may be the recom-
mendation that while increases in the value of deductible property
during marriage (such as ante-nuptial assets) are included in the
spouses’ estates,” 0 capital losses on such property are not allowable
deductions.”‘
In order to facilitate the calculation of the equalizing claims and
to put the onus of establishing an allowable deduction on the spouse
who asserts it, the Commission recommends a presumption that all
of the spouses’ assets are shareable unless the contrary is shown.”2
The equalizing claim is payable on termination of the matrimonial
property regime. This occurs on the death of one spouse or upon
court application in proceedings for divorce or nullityll 2a and in
other special circumstances. 1 13 The claim is a debt which the court
109 Ibid., 66.
110 Ibid., 56, 75.
111 Ibid., 75-76. There are two other instances where debts would not be
shared: Firstly, where at the time of marriage a spouse’s debts exceeded
assets, the net worth would be taken as zero (at 74). Similarly, where at the
time of dissolution of the marriage, a spouse’s total debts exceed assets re-
sulting in a negative residuary estate, the debts are deductible only to the
extent that they reduce the residuary estate to zero (at 67), except where they
were assumed for support of the spouses or their children (at 68).
112 Ibid., 71.
112a Ibid., 55-56. It should, however, be realized that a decree of nullity, unlike
a divorce, means that the marriage had no legal effect. It would follow there-
fore that the matrimonial property regime was not validly created but, while
it is not explicitly stated by the Commission, presumably it intended that the
regime would be deemed to exist until the date of a nullity decree, where at
least one spouse contracted the marriage in good faith. This view has been
proposed in Quebec; see C.C.R.O., Report on the Family, supra, f.n.28, 127-128.
113 The other circumstances are as follows:
a) on a joint application by the spouses to wind up the regime;
b) on an application by one spouse to wind up the regime where the
parties have been “sep4rated and living apart” for at least a year,
and where, in the court’s opinion, “normal cohabitation” has ceased.
c) on an application by one spouse to wind up the regime where that
spouse’s interest in the shareable assets is jeopardized.
d) on an application by one spouse to wind up the regime on the ground
that the other spouse has sold or granted security over the matrimonial
home without the authorization contemplated by the Commission;
ibid., 56.
1975]
REFORM OF FAMILY PROPERTY LAW
may make payable by instalments over a term not exceeding ten
years, subject to the provision of adequate security for the creditor-
spouse.”4 It should be emphasized that the creditor-spouse’s claims
rank behind all legitimate
spouse. n 5
third-party creditors of the debtor-”
The Commission devoted a full chapter of its report to a consider-
ation of special problems which would be created by the adoption
of the regime.”” One important area is the control of tranfers of
property designed to prevent a spouse from depleting his or her
estate so as to reduce the amount of shareable assets;” 7 the spouse
could do this by “excessive gifts”” 8 to third parties. The Commission
therefore recommends that where a spouse makes excessive gifts,
the other partner may apply for termination of the regime and the
court may include the value of the donated property in the net estate
of the donor.” 9 However the Commission recommends against a
power to set aside completed gifts. 20
Another special problem involves rules applicable to the termi-
nation of a regime by the death of a spouse. In this situation, the
Commission recommends that the equalizing claim should be based
on the net estate of each spouse instead of the residuary estate 21
and should not be payable by a surviving spouse to the deceased’s
estate.22
114 Ibid., 79. The Commission noted that “the immediate payment of a claim
could cause hardship”; ibid.
115 Ibid., 80.
110 Ibid., ch.8. The problems are damages for personal injuries, controls or
transfer of property, termination of the regime on the death of a spouse,
variation of the results of the equalizing claim, insurance programs and
pension schemes.
117 Ibid., 86.
“is The term “excessive gifts” is defined as
a) with the exception of usual and customary gifts (e.g., birthday or
holiday gifts) a transfer for no consideration, whether the transfer is
absolute or in trust;
b) a transfer for a consideration which the court finds to be clearly
inadequate, whether the transfer is absolute or in trust; ibid.
119 Ibid., 87.
120 Ibid.
121 Ibid., 88-89. Marriages terminated by death of a spouse are likely to have
had considerable duration. The Commission’s recommendation therefore avoids
the difficulty of identifying and valuing ante-nuptial property (at 88).
122 Ibid., 89. The amount of the claim would usually be returned to the
survivor by the deceased’s will and the survivor would often need all available
assets for maintenance of children; ibid.
McGILL LAW JOURNAL
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As mentioned above, the Ontario Commission’s recommended
regime of deferred sharing of property is similar to Quebec’s partner-
ship of acquests. That regime applies to all marriages in Quebec
where the spouses have not made other arrangements by way of
marriage contract.1′
In Quebec, the division of property into share-
able and non-shareable assets is achieved by classification of property
into acquests and private property.’2 The acquests fall into the
partnership between the spouses and are shareable, while the private
property is non-shareable. Acquests include the proceeds of each
spouse’s work during marriage, the incomes received throughout
the marriage from all the spouse’s property 12
and all property
not declared to be private. 2 ‘ Since the private property of each
spouse is that which was owned at the date of marriage as well as
property acquired during marriage by way of succession or gift,127
it can be seen that the acquests correspond to the residuary estates
in the Ontario Report. The mass of acquests (or total financial
product of. the marriage in the Ontario scheme) is divided in half
between the spouses upon termination of the regime. 2 The pre-
sumption of shareability of assets which was recommended by the
Ontario Commission seems to have been drawn from an article in
the Quebec Civil Code which provides that all property is deemed
to be acquests unless there is proof to the contrary. 29
In accordance with the basic principle that the spouses are
separate as to property during marriage, each “has the adminis-
tration, enjoyment and free disposal of all his private property and
acquests”. 30 However, the Civil Code goes further than the Ontario
Commission’s recommendations against excessive gifts and requires
the consent of the non-titled spouse to all gifts other than “modest
sums”.’3 ‘
The partnership of acquests is dissolved by death, divorce or
judicial separation or upon modification of the regime.13 2 Both the
123 Art.1260 C.C. The parties may choose either community of property, known
as community of moveables and acquests, art.1268 C.C., or separation of pro-
perty, art.1436 C.C.
’24 Art.1266c C.C.
125 Including income from private property.
126 Art.1266d C.C.
127 Art.1266e C.C.
128 Art.1267c C.C.
129 Art.1266m C.C.
130 Art.1266o C.C.
’31 Ibid.
‘ 32 Art.1266r C.C. Modification of the regime during marriage is permitted by
art.1265 C.C.
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REFORM OF FAMILY PROPERTY LAW
Civil Code and the Ontario Commission’s recommendations provide
for judicial control of modification of the regime during marriage,
and require that notice of any changes in the regime be registered
in order to protect the spouses’ creditors. 133 The provision in the
Civil Code that the division of the acquests cannot prejudice the
spouses’ prior creditors 134 seems to correspond to the Ontario
Commission’s recommendation that the equalizing claim rank behind
the debtor-spouse’s creditors.
The crucial distinction between the deferred sharing regime
proposed by the Ontario Commission and the discretionary powers
approach of the English Matrimonial Causes Act, 1973 is that the
Ontario regime creates guaranteed property rights while the English
legislation requires spouses to apply for an exercise of the court’s
discretion. Moreover, the quantum of the guaranteed rights would
be fixed by law whereas in England the extent of the spouses’ po-
tential rights is determined on a case by case basis. Both approaches
elevate the wife from her present status of dependency, but only
the regime of deferred sharing would give her an indefeasible equal
partnership in assets acquired during marriage.
However the Ontario Commission’s proposed regime is open to
two principal criticisms. Firstly, the mere status of marriage gives
each spouse an equal share in the family property without reference
to their contributions to the marriage. Yet in some cases their contri-
butions may be grossly unequal and the reform would sometimes
operate to the detriment of married women. For example, should
an incorrigibly lazy husband who did not support his family and
merely “hung up his hat in the hall”, 3 5 have an automatic right to
one half of his wife’s hard earned property?
The Commission recognized that fixed property rights may not
be in accord with “the infinite variety of human circumstances that
will be revealed in individual cases”,1 36 and it therefore considered
the possibility of permitting a variation of the result of the equalizing
claim. 3 7 It recommended that:
[W]here … the unmodified application of rules … would lead to grossly
inequitable results, the court, having regard to the circumstances of the
case but without regard to matrimonial fault, should be able to make
127-128.
133 Art.1266 C.C.; Ontario Commission, Report on Family Law, supra, f.n.2,
134 Art.1267d C.C.
135 Gollins v. Gollins [1964] A.C. 644, 657.
136 Ontario Commission, Report on Family Law, supra, f.n.2, 90.
137 Ibid.
McGILL LAW JOURNAL
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an order varying the results of the equalizing claim … as may appear
just and proper.1 38
Since the power of variation would not be “a disciplinary or
punitive measure with respect to the fulfilling of matrimonial obli-
gations”, 139 the incorrigibly lazy husband hypothesized above would
get his half share, illustrating that “fixed property rights would …
cause dissension and injustice”. 140 That could be prevented by a
more extensive power of variation than recommended by the Ontario
Commission. It is therefore submitted that the court should have
the power to vary the result of the equalizing claim where a spouse
has failed to contribute to the general welfare of the family. This
could be achieved either by specific provision for variation of the
equalizing claim or by the enactment of legislation creating dis-
cretionary powers to vary property rights,’4 ‘ in addition to the
matrimonial regime.
The second criticism of the proposed regime stems from the
Ontario Commission’s recommendation that spouses should be able
to elect to have their property rights governed by separation of
property or by the terms of a marriage contract. A recent study in
Quebec, where a similar right of election exists, showed that from
July 1, 1970, when the regime of partnership of acquests was estab-
lished, to December 31 1973, the spouses chose separation of property
in 53.3% of all marriages. 142 39.6% of the marriages occurring during
the period were celebrated without a marriage contract and ac-
cordingly fell into the statutory regime of partnership of acquests1’4
Another 6.6% elected partnership of acquests by notarial deed 144
so that a total of 46.2% of marriages were governed by the regime.
The study concludes that [1]a socidt6 d’acqu~ts nous apparalt donc
bien implantde au Qudbec”, 4 but it must be conceded that a signi-
ficant number of marriages are still subject to separation of property.
Moreover, in the common law provinces, where there is no tradition
of a matrimonial regime, it might be expected that the percentage
of marriages in which the spouses elected separation would be
higher.
138 Ibid., 93.
139 Ibid.
140 Law Com. no.52, supra, f.n.18, 4.
141 E.g., The Matrimonial Causes Act, 1973, supra, f.n.49, ss.24 and 25.
142 Rivet, La popularitM des diffdrents rdgimes matrimoniaux depuis la rd-
forine de 1970 (1974) 15 C.de D. 613, 628.
143 Ibid.
144 Ibid.
145 Ibid., 636.
1975]
REFORM OF FAMILY PROPERTY LAW
It is therefore clear that even if the Ontario Commission’s pro-
posed regime were adopted in the common law provinces, separation
of property would continue to play an important part in matrimonial
property law. But unless the rigidity of the traditional rules of
separation of property were ameliorated, injustices of the type seen
in Murdoch 146 could still be perpetrated where the spouses were
separate as to property.’47 It must be noted that the matrimonial
home would not be subject to separation of property since the
Ontario Commission has recommended that the principle of co-
ownership should apply to it. 4 8 However, this proposal merely
engrafts an exception onto the rules of separation with respect to
one species of property, but many families do not own a matrimonial
home. Thus the Ontario Commission’s Report offers only a partial
solution to property disputes between spouses who elect the system
of separation of property.
The loophole could be blocked by removing the right to opt out
of the proposed regime but such a draconian measure would hardly
be acceptajble. It is therefore submitted that the right to opt out of
the regime should carry the corollary that the courts have power
to prevent injustices with respect to property rights in marriages
governed by separation of property. The unavoidable conclusion
seems to be that those marriages would have to be subject to a judi-
cial discretion to override the rules of separation and create or
vary property rights. This result would be achieved by the Saskat-
chewan Commission’s recommendation that both the matrimonial
regime and the system of discretionary powers be adopted. 149 The
148 Supra, f.n.1.
147 A parallel problem exists in Quebec for those marriages which are
subject to the regime of separation of property. The standard form of
marriage contract by which the spouses elect separation contains provisions
for the husband to promise certain gifts of property to the wife as consi-
deration for her renunciation of the statutory regime. Under art208 C.C. the
wife may demand execution of the gifts on dissolution of the marriage, but
the court has a discretion to declare them forfeited if she has been guilty of
misconduct. Moreover, in some marriages the regime of separation of property
is elected without any provision for gifts. See generally, Brierley, “Husband
and Wife in the Law of Quebec: A 1970 Conspectus” in Mendes de Costa (ed.)
Studies in Canadian Family Law (1972), vol2, 795, 843-844. The Civil Code
Revision Office has recently recommended an amendment to the terms of
art.208 C.C.; see C.C.R.O., Report on the Family, supra, f.n.28, 279-280.
148 Ontario Commission, Report on Family Law, supra, f.n.2, ch.12.
149 Saskatchewan Commission, Third Working Paper, supra, f.n.2, 5. The
Commission recommends that the spouses should have the right to agree that
the courts be precluded from exercising the judicial discretion (at 12). In
McGILL LAW JOURNAL
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legislative structure would then resemble the present British position
with the matrimonial regime superimposed upon it. However, it
should be noted that in view of the “potential scope… [for] equi-
table sharing”‘150 illustrated by Wachtel and Trippas, the British Law
Commission rejected the necessity of superimposing a deferred com-
munity regime upon the discretionary powers. 5′
The Alberta Institute made two other criticisms of the deferred
sharing regime. Firstly it was said that the task of separating share-
able from non-shareable property is complicated. 52 Special problems
would be likely to arise with respect to the source of particular items.
For example what was the true value of ante-nuptial assets and
debts? Was an item acquired by way of gift? While the presumption
of shareability would solve the legal question, it may exacerbate the
tensions of -dissolving a marriage. Secondly, it was said that the wife
does not have a present right of ownership during the regime and
is therefore* still in a dependent economic position until the marriage
is terminated. 53 However, the only way that both spouses could
have present rights of co-ownership in all the family’s assets during
marriage would be under a regime of community of property with
the inherent problems noted above. 15
3a Furthermore, since property
disputes usually arise only upon termination of the marriage, the
deferred community regime seems at least to provide sufficient
protection for the wife’s property rights.
Finally, the details of the Ontario Commission’s regime should
be carefully considered. As suggested earlier, perhaps the most
controversial element is the recommendation that capital gains on
deductible property should be shareable while capital losses should
not. It is submitted that neither losses nor gains can be attributed
order to ensure that the courts would be able to do justice in all marriages
not subject to the statutory regime, this right of election would have to
be disallowed. It does not exist in England.
150 Law Com. no.52, supra, f.n.18, 18.
151The Commission said that “[ilt appears unnecessary at this stage to
superimpose a community structure”; ibid. This suggests that it may reopen
the issue if the Matrimonial Causes Act, 1973, supra, f.n.49, does not prove to
be a completely effective vehicle for equitable division of family property.
152 Alberta Institute, Working Paper, supra, f.n.2, 68; See also, Hahlo, De-
ferred Community of Gains – A Note of Warning (1974) 52 Can.Bar Rev. 482,
483. The author notes that “the whole system puts a premium on accurate
book-keeping, a mercenary practice hardly to be encouraged as between
spouses”; ibid., 483.
’53 Alberta Institute, Working Paper, supra, f.n.2, 18.
iua See text at f.n.100.
1975]
REFORM OF FAMILY PROPERTY LAW
to the fact of marriage and therefore whatever rule is adopted, it
must treat losses and gains in the same way. The present recom-
mendation would simply encourage a spouse with ante-nuptial pro-
perty to opt for the system of separation.
3. Co-ownership of the Matrimonial Home
The legal position of the matrimonial home in family property
relations is of special importance because it is the “shelter and focal
point of the family’ ‘ 154 and is often the spouses’ only “substantial
asset”.155 Thus one of the major complaints about the existing law
has been the failure of the courts to achieve an equitable solution
applicable to disputes over ownership of the home. 156 To meet this
criticism, the Ontario and Saskatchewan Commissions both recom-
mended the legislative adoption of the principle of co-ownership
by the spouses of the matrimonial home. 57 The proposal is also
discussed in the Alberta Institute’s working paper, 5 8 and it is worth
noting that the British Law Commission has recommended that the
discretionary powers of the Matrimonial Causes Act, 1973 be supple-
mented by provision for co-ownership of the matrimonial home.” 9
More recently, the Civil Code Revision Office of Quebec has proposed
protection of the matrimonial home through the medium of a decla-
ration of residence which, when registered against the home, would
prevent the owner from dealing with the property without the
consent of his or her spouse.15a
154 Ontario Commission, Report on Family Law, supra, f.n.2, 131.
155 Law Com. no.52, supra, f.n.18, 4; see also, Ontario Commission, ibid.
156 E.g., Pettitt v. Pettitt, supra, f.n.16; Gissing *v. Gissing, supra, f.n.16.
Murdoch v. Murdoch, supra, f.n.1, involved a dispute over a farm property of
which part comprised a house that the family occupied as their matrimonial
home.
157 Saskatchewan Commission, Third Working Paper, supra, f.n2, 5, 14;
Ontario Commission, Report on Family Law, supra, f.n.2, 135. The Ontario
Commission defined the matrimonial home as “the dwelling, and the area
attached thereto, that is owned by either of the spouses, and occupied by
them during marriage as their principal family residence”; ibid., 132. The
principle of co-ownership of the home would apply only to one dwelling house.
If a spouse owned more than one house, co-ownership would attach only to
“the principal family residence”; ibid., 133.
5 8 Alberta Institute, Working Paper, supra, f.n.2, 47-55.
‘
159 Law Com. no.52, supra, f.n.18, 7, 10.
159a C.C.R.O., Report on the Family, supra, f.n.28, 187-188. In certain cases
the court has power to make a preferential attribution of the home to either
spouse; ibid., 199-200.
McGILL LAW JOURNAL
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Under the Ontario Commission’s detailed scheme of co-ownership,
the spouses would have joint control over the home, as tenants in
common, even if title were not taken in both names, because in every
disposition of the home, the non-titled spouse would have to be a
party to the transaction or sign a written form of consent to it.’
The non-titled spouse could protect his or her half share in the home
by registration of that interest, but even without registration, the
right of co-ownership would prevail over claims of third parties
who transacted solely with the spouse whose name appeared on the
title.’,’ The rights of parties holding security interests in the home
at the date of proclamation of the new legislation would be pre-
served, 16′ but subsequently, if a mortgage were obtained without
the consent of the non-titled spouse, the mortgagee would not be
able to realize the security with respect to that spouse’s share in
the home. 63 The spouses would be able to agree that the home
should not be jointly owned but the Commission recommends that
the courts have “broad powers …
to set aside or vary such arrange-
ments”.6 Both the Ontario and Saskatchewan Commissions recom-
mend that the law should apply retroactively to homes owned prior
to the date of the legislation. 165 The principle would also cover a
home acquired before the marriage but brought into the union by
one of the spouses. 16
The principle of co-ownership would carry with it the right for
each spouse to occupy the matrimonial home’ 60 but in the event
of a dispute between the spouses, the existing law would entitle either
co-tenant to apply for a partition of the property.”;8 The Ontario
Commission therefore recommends that the court have power to
safeguard occupation rights of a spouse where necessary and that
such rights should prevail over the provisions for partition.0 9
160 Ontario Commission, Report on Family Law, supra, f.n2, 137.
161 Ibid., 140. Cf. The Civil Code Revision Office’s recommendation that third
party rights be protected by a declaration of residence; C.C.R.O., Report on
the Family, supra, f.n.28, 187-188, 193-197.
162 Ontario Commission, Report on Family Law, supra, f.n.2, 139.
163 Ibid., 141.
A64Ibid., 136. See also, Saskatchewan Commission, Third Working Paper,
supra, f.n2, 14; Law Com. no.52, supra, f.n.18, 7.
165 Ontario Commission, Report on Family Law, supra, f.n.2, 138; Saskat-
chewan Commission, Third Working Paper, supra, f.n.2, 5.
166 Ontario Commission, Report on Family Law, supra, f.n.2, 135.
1O? Ibid., 144.
168 E.g., The Partition Act, R.S.O. 1970, c.338, s.2.
1,9 Ontario Commission, Report on Family Law, supra, f.n.2, 144-145.
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REFORM OF FAMILY PROPERTY LAW
Co-ownership of the home should also entail the right to use
household goods 7′ such as furniture. In this regard the Ontario
Commission, following the lead of the British Law Commission,
recommended that property rights in the goods need not be altered.171
Its proposals are confined to protecting use and enjoyment of the
goods. 172
The Ontario Commission recommended that the principle of co-
ownership of the home be adopted independently of any decision
with respect to its proposed deferred sharing regime.’ 3 However,
unless co-ownership of the matrimonial home were supplemented
by other legislation, there might still be instances of injustice because
the rigid rules of separation of property would continue to apply
to family assets other than the home. To prevent injustices, the
principle of co-ownership of the home could be added either to the
system of discretionary powers over matrimonial property or to
the deferred sharing regime. If co-ownership of the home were com-
bined with the judicial discretion over family property, as would be
the result of the British Commission’s proposal, each spouse would
be entitled to an equal share of the home but the court could exercise
its discretion to vary those rights upon dissolution of the marriage. 74
Thus, unless the legislation were to exempt the matrimonial home
from the court’s discretion over property rights, upon termination
of the marriage the principle of co-ownership of the home would
operate only as a prima facie presumption.
If co-ownership of the home were combined with the deferred
sharing regime, there would be some overlap between the two pro-
visions. The Ontario Commission recommended that upon termi-
nation of the regime, the value of the matrimonial home should be
included in the calculation of the equalizing claim, by determining
the net value of the home and adding half that amount to the net
estate of each spouse. 7 5 Thus even without the principle of co-owner-
ship of the home, the titled spouse would have to share the home
170 The Commission recommended that household goods “should include
furniture and effects used in or reasonably necessary to the running of the
hdme … . Categories which ought … to be excluded are purely personal items
and goods used by a spouse for business purposes”; ibid., 147.
171 Ibid., 146; Law Com. no.52, supra, f.n.18, 31.
172 Ontario Commission, Report on Family Law, supra, f.n2, 147. Cf. the
proposals of the Civil Code Revision Office; C.C.R.O., Report on the Family,
supra, f.n28, 177-184.
173 Ontario Commission, ibid., 131.
174 Matrimonial Causes Act, 1973, supra, f.n49.
176 Ontario Commission, Report on Family Law, supra, f.n2, 143.
McGILL LAW JOURNAL
(Vol. 21
through the equalizing claim. The only additional advantage that
could be achieved through the principle of co-ownership of the home
would be where one spouse purchased the home before marriage.
In that situation the home would not be shareable under the regime
since it would be ante-nuptial property, but it would be shareable
through the principle of co-ownership of the home. Of course, one
instance in which co-ownership of the home would have the intended
effect would be in those marriages where the spouses opted out of the
regime in favour of separation of property.
It should be noted that the Saskatchewan Commission recom-
mended that the principle of co-ownership of the home be supple-
mented by both discretionary powers over property and the deferred
sharing regime.17 6 This would result in a complex inter-relationship
between the three sets of provisions upon which the Commission
has not elaborated.
There are strong arguments in favour of the principle of co-
ownership of the home. Often it is the family’s main asset and there
is already a well established practice of joint ownership.11 7 Co-
ownership of the home would dpply during the marriage and would
give “security of ownership”‘178 to the non-titled spouse –
usually
the wife. This would be of particular importance to those wives
whose only work is domestic duties. It would also eliminate the
wastefulness and uncertainty of litigation.179
The principal argument against co-ownership of the home is that
it assumes equal contribution by both spouses and creates fixed
property rights solely by virtue of the status of marriage. This criti-
cism has been noted with respect to the deferred sharing regime.
However, if the co-ownership principle were combined with a judicial
discretion over the spouses’ property rights, the court would be able
to readjust or abrogate co-ownership where necessary. If co-owner-
ship of the home were exempted from the general discretion then a
specific power to vary property rights in the home would be
required. 80
A second argument against co-ownership of the home is that
where the spouses do not hold title jointly or in common, it would
170 Saskatchewan Commission, Third Working Paper, supra, f.n.2, 5.
177 Law Com. no.52, supra, f.n.18, 8; Ontario Commission, Report on Family
Law, supra, f.n.2, 135.
178 Law Com. no.52, supra, f.n.18, 9.
179 Ibid., 9-10.
180 See Saskatchewan Commission, Third Working Paper, supra, fn2, 15.
1975]
REFORM OF FAMILY PROPERTY LAW
complicate real estate transactions.’8 ‘ Purchasers and mortgagees
would be put on enquiry as to the owner’s marital status and as to
whether the house constituted a matrimonial home.”‘ The Alberta
Institute’s suggestion that the Dower Act could be used as a vehicle
of co-ownership would not alleviate conveyancing difficulties.’ 8s ”
A third objection is that spouses vould be required to share the
home, but there would be no corresponding obligation regarding
other assets.’ Thus the spouse who obtained an interest in the home
might own other assets of considerable value which would not have
to be shared. 18 5 However, if the principle of co-ownership of the
home were combined with discretionary powers over property rights,
the courts could make the necessary adjustments.
Finally, as mentioned above, it must be stressed that the principle
of co-ownership of the matrimonial home does not assist spouses
who do not own a home.1′
Relationship between the Proposed Reforms and the Law of
Succession
The main criticism of the existing law of family property is that
it discriminates against the wife during the lifetime of the spouses.
But many marriages survive until the death of one partner and it is
therefore important to consider the relationship between the pro-
posed reforms and the law of succession. It has been recommended
“that the surviving partner of a marriage should have a claim upon
the family assets at least equivalent to that of a divorced spouse”. 187
1. Judicial Discretion
The first proposal for reform, as discussed earlier, is the judicial
discretion to create or vary property rights between the spouses on
181 Jacobson, Murdoch v. Murdoch: Just about what the Ordinary Rancher’s
308, 322-323. But cf. the proposals of the Civil
Wife Does (1974) 20 McGill L.
Code Revision Office, supra, f.n28, 161.
182 The problem would be exacerbated where the vendor owned two homes
because the purchaser may have to decide which one constituted the principal
family residence.
D.L.R. (2d) 262 (Ont. CA.), aff’d by [1958] S.C.R. 483.
183 Meduk v. Soja [1958] S.C.R. 167. But cf. Freedman v. Mason (1957) 9
184 Law Com. no.52, supra, f.n.18, 9.
185 Ibid., 17.
186 A determined spouse might therefore avoid sharing the home by pur-
chasing it through a corporation.
187 Law Com. no.52, supra, f.n.18, 13.
McGILL LAW JOURNAL
[Vol. 21
divorce, nullity of marriage or separation. If this were accepted, the
surviving spouse would be treated less generously than the divorcee
and others because there is no judicial discretion to alter property
rights upon the death of a spouse.1 88 Where the deceased leaves a will
which partly or totally disinherits a dependent spouse, the latter is
entitled to apply to the court for a change in the provisions of the
will. Here the court’s discretion is limited to making “an order
charging the whole or any portion of the estate… with payment of
an allowance sufficient to provide… maintenance”.,8 9 As the British
Law Commission noted “this is clearly narrower in concept than the
provision of a fair share”‘190 which is the aim of legislation creating
discretionary powers to adjust property rights. Symmetry between
the laws of succession and dissolution would therefore require an
amendment to the Dependants’ Relief Act’ 9′ in which maintenance
rights would be superceded by provision for a share of property.191a
It must also be noted that the Dependants’ Relief Act discrimi-
nates against married women because “a wife who was living apart
from her husband at the time of his death under circumstances that
would disentitle her to alimony” is not entitled to an order.1 2 But
a husband is not similarly disentitled by such misconduct. It is
imperative that this discrimination be removed and the Ontario
Commission has so recommended. 93
Where the deceased is intestate, the surviving spouse is entitled
to a fixed share of the estate. 194 As noted earlier, the intestacy laws
of the common law provinces provide quite fairly for the surviving
188 Alberta Institute, Working Paper, supra, f.n.2, 75.
189 The Dependants’ Relief Act, supra, f.n.37, s2(1).
190 Law Com. no.52, supra, f.n.18, 13. But the provision in The Dependants’
Relief Act, ibid., s.2(2) for payment of a lump sum and conveyance of certain
property seems to allow for a concept of a fair share of capital for the
survivor.
191 R.S.O. 1970, c.126.
191a This point does not seem to have been given sufficient attention in the
reports. See Alberta Institute, Working Paper, supra, f.n2, 75; Saskatchewan
Commission, Third Working Paper, supra, f.n.2, 8. On the other hand, the
British Law Commission has recently made extensive recommendations on
this subject. See The Law Commission, Second Report on Family Property:
Family Provision on Death (1974), no.61. The standard applicable to the
surviving spouse would be a reasonable share of the estate similar to the
case of termination of marriage, but other dependents would be entitled
only to adequate maintenance (at 5-6).
192 Supra, f.n.191, s.9.
193 Ontario Commission, Report on Family Law, supra, f.n.2, 110.
194 E.g., Devolution of Estates Act, supra, f.n.35.
19751
REFORM OF FAMILY PROPERTY LAW
spouse 19 and thus even if a judicial discretion over inter vivos pro-
perty rights were adopted, it might not be necessary to extend the
discretion to cases of intestacy. However it has been held that a
widow who, prior to her husband’s death, lives apart from him in
an adulterous relationship, loses most of her rights under the intes-
tacy laws.’96 There is no parallel disentitlement against widowers
and the discriminatory effect of the present law should be reversed
by legislation.
2. Deferred Sharing of Property
It will be recalled that the deferred sharing of property would be
effected by the termination of the matrimonial regime and that one
of the terminating circumstances would be the death of a spouse.
If the survivor were entitled to receive an equalizing claim it would
be payable by the deceased’s estate; however, no equalizing claim
would be payable by the survivor to the estate. The equalizing claim
would be based on the spouses’ net estates in order to avoid the
problem of identifying and deducting the value of ante-nuptial
property. The effect of the regime on succession will now be
considered.
Where the deceased spouse leaves a will, the amount of the
equalizing claim, if any, payable to the survivor, would have to be
deducted from the value of the property distributed by the will. 9 T
The widow would therefore be protected against testamentary
disinheritance and would be entitled to a share of her husband’s
property upon his death at least equivalent to what she would
receive on dissolution of marriage. Moreover, the wife would have
guaranteed property rights, whereas under existing law a disinherited
spouse must apply for maintenance, the amount of which depends
on the discretion of the court. Nevertheless, the fact that existing
law contains protection against disinheritance “probably has some
influence on testators minded to be ungenerous to their dependants,
and this may account for the fact that applications … are relatively
few in number”. 98 The burdensome calculation of the equalizing
claim may therefore “not be worth the trouble that it imposes on the
estate”. 199
195 See text, supra, at fns34 et seq.
196 MacWilliams v. MacWilliams, jupra, f.nA1.
19i Ontario Commission, Report on Family Law, supra, f.n2, 170.
98 Law Com. no.52, supra, f.n.18, 13; see also, Alberta Institute, Working
Paper, supra, fm.n2, 79.
19 Alberta Institute, Working Paper, supra, f.n.2, 79.
McGILL LAW JOURNAL
[Vol. 21
Furthermore, since the deferred sharing regime was modelled on
Quebec’s partnership of acquests, it is necessary to compare the
succession laws of Quebec with those of the common law provinces.
In Quebec, there are no limits on freedom of testation either through
provision for adequate alimentary maintenance or for a forced
survivor’s share (lggitime).200 Thus the case for a statutory regime
of deferred sharing of property applicable on succession is far
stronger in Quebec than it is in the common law provinces.
Where the deceased is intestate, the surviving spouse’s rights
under the Ontario Commission’s proposed regime would comprise
both the equalizing claim and the share prescribed by the intestacy
laws in the balance of the estate.201 This appears to be unnecessary
duplication since the surviving spouse is already entitled in Ontario
to a preferential share of the first $50,000 of the estate and a mini-
mum of one third of the balance. 20 2 It is therefore submitted that
Ontario’s existing intestacy laws provide property rights which are
at least equivalent to, and sometimes greater than, the rights that
would be created by the deferred sharing regime. The calculation
of the equalizing claim would thus be superfluous.
Comparison with Quebec’s succession laws on an intestacy further
weakens the case for the operation of the Ontario Commission’s
deferred sharing regime in this situation. In Quebec the surviving
spouse has no fixed preferential entitlement and may be required
to share part of the estate with the deceased’s parents and collateral
relatives up to nephews and nieces in the first degree. 0 Moreover,
where there are children of the marriage or such relatives as previous-
ly mentioned, the widow is required to abandon her rights under
the partnership of acquests in order to obtain her share of the in-
testate estate.2
4 In this regard the Ontario Commission’s proposal
would be more favourable to the widow than the comparative
provisions of the law of Quebec; but even without the regime the
present intestacy laws already provide well for the widow who is
treated more generously than her Civil Law sister.
0
3. Co-ownership of the Matrimonial Home
This principle would give equal shares in the home to husband
and wife where only one spouse has the title. It would give the non-
200 Brierley, supra, f.n.147, 829.
201 Ontario Commission, Report on Family Law, supra, f.n.2, 170.
202 The Devolution of Estates Amendment Act, supra, f.n.34; Devolution of
Estates Act, supra, f.n.35, s.31.
2oM Art.624b C.C.
4 Art.624c C.C.
19751
REFORM OF FAMILY PROPERTY LAW
titled spouse vested property rights during the marriage as a tenant
in common. Upon the death of one spouse, the other would not be-
come sole owner by survivorship as that would only occur where the
spouses hold title as joint tenants. 5 Thus the principle of co-owner-
ship of the home would have the same result whether the marriage
was terminated inter vivos or by death. In either case, the non-titled
spouse would obtain at least a one half share in the home. However,
if the principle of co-ownership of the home were combined either
with the system of judicial discretion or the deferred sharing regime,
there would be complex problems of interrelationship between the
provisions which, as noted earlier, do not seem to have been fully
resolved by the law reform commissions.
Conclusion
Each of the proposals for reform is open to some criticism but
it is submitted that the most acceptable modality for an immediate
and far-reaching reform of the system of family property in the
common law provinces is the creation of a judicial discretion over
property rights, as in England’s Matrimonial Causes Act, 1973. It
should be noted that this reform would build on the foundations
of the existing common law and the significant social and judicial
results of the English experience have been illustrated. While this
type of legislation would not immediately make the wife a full
economic partner with her husband it would be a large step in that
direction. The reform has what seems to be the disadvantage of
imposing on one spouse the onus of presenting an application for
an exercise of the court’s discretion but it is submitted that this is
not a major criticism. Firstly, the determination of property rights
would often be handled concurrently with the court proceedings
that generally accompany a dissolution.0 6 Secondly, separate appli-
cations could be decided in the judge’s chambers with a minimum
of time and expense. Thirdly, the English Court of Appeal has shown
that clear working principles follow from the legislation so that
precedents would be quickly established which would prevent sub-
stantial variations from case to case.
While the Ontario Commission’s proposed deferred sharing regime
would certainly make both spouses full economic partners in the
marriage, adequate provision would still have to be made for those
210 Megarry and Wade, The Law of Real Property 3d ed. (1966), 403.
206 But note the constitutional problems if such jurisdiction were to be given
to the divorce court, supra, f.n.85.
McGILL LAW JOURNAL
[Vol. 21
marriages in which the spouses elected to be governed by the system
of separation of property. Moreover, one important reason for im-
posing deferred sharing of property as the statutory regime would
be to protect the surviving spouse against disinheritance by will.
In the common law provinces, unlike Quebec, the law already
provides such protection and the argument in favour of a deferred
sharing regime is therefore weakened.
The principle of co-ownership of the matrimonial home could
easily supplement the discretionary powers legislation to ensure that
the spouses would be prima facie equal partners in the matrimonial
home. Such a reform would introduce into the common law pro-
vinces a tradition of community of property, at least in regard to
one asset, which would facilitate the evolution of a deferred sharing
regime if that step were eventually considered necessary.
Finally, it should be realized that if the discretionary power to
alter property rights is adopted, some cases will be decided in con-
nection with divorce proceedings 207 while others will be dealt with
in a non-divorce setting. 08 Cooperative federalism will therefore be
required in the drafting of legislation. Moreover, if some provinces
choose other solutions in their legislation, grave conflict of laws
problems will arise. Accordingly, it would seem that the ultimate
resolution of the problem will require collaboration between all the
provincial legislatures and the Parliament of Canada.
2 The jurisdiction over divorce is federal; see s.91(26) of the British North
America Act, 1867, supra, fn.85.
2o This jurisdiction would be provincial; see s.92(13) British North America
Act, 1867, ibid.
