Cifp Risk Mangagement Unit 8

Front 1

What is community of property regime?

Back 1

-spouses are free to own and manage their own property during marriage

-division of community property is deferred until the marriage breaks down

-legislation specifies how the community property will be divided between the spouses or the deceased's estate

Front 2

How does marriage effect ownership of property for each spouse?

Back 2

-Marriage does not give one spouse an automatic proprietary interest in the property of the other spouse

-Each spouse is still free to own and control assets registered in his or her own name

-create a statutory obligation to share in the value of assets acquired by both spouses during the marriage (sometimes before marriage too)

Front 3

Generically, since each prov has own def, what is "community property"?

AKA family property, family patrimony, marital property, or net family assets.

Back 3

-property associated with the marriage & subject to division

Front 4

How does Dependant Relief legislation view entitlement of surviving spouse to estate of deceased spouse?

Back 4

surviving spouse should be no worse off than if he or she had undergone a separation of assets upon the death of his or her spouse

Front 5

What are 3 types of triggering events for application for the division of community property under provincial matrimonial property legislation?

Back 5

-usually once spouses begin to live separate and apart, but sometimes not until a petition for divorce or annulment is filed

-upon death of one of the spouses

-some provinces, if one of the spouses is unreasonably depleting the community property

Front 6

What is the time that can elapse between relationship breakdown and an application for division of community property?

Back 6

Some provinces as short as 60 days after divorce and some as long as up to two years after divorce or six years after the spouses begin living separate and apart

Front 7

In provinces where only property acquired during marriage and increase in value of property acquired by either spouse prior to marriage is subject to equalization, how is division of property handled?

Back 7

1. Value property at time of division less liabilities and exempt property (inheritance) with joint property allocated 50:50

2.Value everything owned at time of marriage, except exempt property, less liabilities

3.Subtract each spouses net worth at time of marriage from net worth at time of division, this is net family property

4.Equalization payment due to spouse with lower net family property

Front 8

Is a the matrimonial home owned by one of the spouses prior to marriage considered exempt or community property?

Back 8

Some provinces include the matrimonial home in the community property subject to division, ven if that home was owned by one of the spouses prior to marriage or purchased with the proceeds of exempt property, such as life insurance or an inheritance

Front 9

If a province considers businesses and biz property non-family assets, when would the asset be subject to division?

Back 9

-non-owning spouse made a direct or indirect contribution to the operation of that business

-non-owning spouse contributed work, money, or money's worth to biz

-other marital property unreasonably impoverished due to biz

Front 10

What can happen if deceased spouse writes surviving spouse out of will or insufficiently provides for that spouse?

Back 10

Can make application for application division of community property under the provincial matrimonial property legislation after death

-surviving spouses forfeits entitlements under will (ie, can't have both ways)

Front 11

What leeway do provinces have under division of community property?

Back 11

All of the provinces initially provide for an equal division

BUT all of the provinces also provide for unequal division of community property if an equal division would be "inequitable", "unfair", or "unconscionable"

Front 12

How is "matrimonial home" defined?

Back 12

-any dwelling place normally inhabited by a family

-does not preclude two or more properties being designated as such (cottage)

-only the portion of the property used as a residence qualifies as the matrimonial home (farm, biz/rez building

-leased accom

-shares in housing co-op

Front 13

What are restrictions re possession and ownership of matrimonial home?

Back 13

-all spouses have an automatic equal right of possession(use, mgt), right term'd at divorce

-owning spouse may not sell, encumber, depreciate w/o consent

-most prov can't waive equal right of possession

-court can grant non-owning separated spouse exclusive possession (usually reg title)

Front 14

Diff between tenancy-in-common and joint tenancy?

Back 14

TIC:ea tenant has undivided interest, can sell or will portion, use full prop,

JT: ea tenant has equal share, neither can sell w/o permission, interest transfers to survivor at death, rel'p breakdown can convert to TIC

Front 15

Difference between resulting trust and constructive trust?

Back 15

RESULTING: Evidence of titleholder's intention to hold property in trust (verbally, conduct, writing, monetary cont)

CONSTRUCTIVE: Imposed against titleholder w/o evidence of trust intent, 4 req's 1.cont enriched 2. corr. deprivation 3. no legal reason for enrichment 4. causal connection ie contribution increased value (not critical)

Front 16

Since not every province recognizes same-sex, common-law partners in its matrimonial property legislation, how could a an interest in property be claimed?

Back 16

remedy of constructive trusts

Front 17

How are pension benefits/credits divided between spouses upon relationship breakdown?

Back 17

by domestic contracts (sep agreement) made in accordance with provincial matrimonial property legislation

UNLESS waived rights to share pen credits w marriage/cohabitation contract

NOT a right granted by Pension Benefits Standards Act

Front 18

How are pension benefits/credits calculated upon relationship breakdown?

Back 18

-vested = max 50% commuted value

-not vested= max 50% of sum of cont + int

OPTIONS pension at ret, LIRA, RPP trans, deferred annuity

Front 19

When must CPP credit split occur upon breakdown of a relationship?

Back 19

-once minister receives notice of divorce

-sep at least 1 year

-death w/i 1st yr apart, must apply w/i 4 yrs started living separate

-death after 1st yr apart, must apply w/i 3 yrs of death

Same-sex & C/L recognized as having same rights as legal spouses

Front 20

What are the conditions that must apply to transfer RRSP/RIF to former spouse on relationship breakdown

Back 20

-living separate and apart

-transfer is made under a decree, order or judgement, written separation agreement

-issuing & recipient plans complete T2220

Front 21

If an individual who has a life insurance policy with a cash surrender value dies and their spouse applies for division of community property, what value would they receive?

Back 21

Only the cash surrender value, not the death benefit, would be subject to division.

If surviving former spouse was named as beneficiary, the death benefit considered partial payment of any equalization payment, unless policy included written designation to contrary.

Front 22

How does income and capital gain attribution work during relationship breakdown?

Back 22

While separated, no attribution of property income, but capital gains will still be subject to attribution

Once the breakdown is final (divorce, 90 days sep for c/l), income attribution rules cease to apply

Front 23

What is a qualifying spousal trust?

Back 23

spousal beneficiary (which includes a common-law partner) is entitled to receive all of the income from the trust property as long as he or she is alive; and from which no person other than that spouse may receive or otherwise obtain the use of any trust income or capital as long as he or she is alive.

Front 24

How are separation agreement enforced?

Back 24

If province supports domestic agreements, enforceable through family law courts

If province does not support domestic agreements, contract litigated in a civil court of law

Applies to: marriage contracts, cohabitation agreements, and separation agreements.

Front 25

If province supports domestic agreements, how does agreement become valid?

Back 25

Filed with province

made in writing, signed by both parties, witnessed

Front 26

When does a marriage contract come into force?

Back 26

If drafted as marriage contract prior to marriage, comes into force date marriage solemnized.

If drafted as cohabitation agreement, continues in forces as marriage contract unless contrary provision.

Front 27

What is the most significant distinction between marriage agreements and separation agreement?

Back 27

Separation agreements can deal with the custody and access of children.

Front 28

On which matters of domestic contracts might provincial or federal legislation places restrictions?

Back 28

-waiver of right of equal possession of the matrimonial home

-opt out of the mandatory division of CPP credits upon divorce

-child or spousal support could be overruled if court finds it unfair or unconscionable

Front 29

What will most/all provinces allow/disallow regarding marital property?

Back 29

MOST NOT allow waiver of possession of matrimonial home in marriage contract

MOST ALLOW opt out of effect of matrimonial property leg via a domestic contract either before or after separation

Front 30

What provinces distinguishbetween family assets and non-family assets.?

Back 30

Newfoundland, Nova Scotia, New Brunswick, British Columbia and the Yukon)

Non-family assets: biz, only subject to division when the non-owning spouse can prove that he or she contributed to theiracquisition and/or operation

Front 31

If intestate, order courts tend to appoint an administrator, unless any unsuitable for a reason

Back 31

surviving spouse, adult children, adult grandchildren,adult great grandchildren or other descendants, father, mother, brothers and sisters