What factors have been considered in determining the value of matrimonial property in a common law relationship?

Alberta, Canada


The following excerpt is from N. M. v. C.L.M., 2005 ABQB 724 (CanLII):

The factors I have considered include: a) The contribution made by C.L.M. to both the marriage and the welfare of the family by working long, full time hours while at the same time being the home maker and parent to both boys during the course of the marriage; b) That N.M. made little or no contribution either financially or in terms of other actions to contribute to the welfare of the family: Leblanc v. Leblanc, 1988 CanLII 96 (SCC), [1988] 1 S.C.R. 217; c) The contribution made by C.L.M. to the acquisition of the matrimonial property; d) The fact that C.L.M.’s higher earning capacity was eliminated prior to the date of separation and that N.M. has the ability to earn much more into the future than does C.L.M.; e) That C.L.M. undertook all of these obligations for 6 years in a common-law relationship and 13 years of marriage, despite the fact that the relationship was very challenging; f) That C.L.M.’s 2000 GMC Jimmy was acquired when the spouses were living separate and apart, and g) That I find no evidence of dissipation of property.

In making my decision, I am guided by principles set out in the applicable case law. First, as Justice Veit commented in Gardner v. Gardner, 1999 ABQB 544 at para. 9, parents are obligated to maximize their income for the benefit of their children. N.M. clearly chose not to do this.

In addition, in Hodgson v. Hodgson, 2005 ABCA 13, our Court of Appeal determined that, for the purposes of the Matrimonial Property Act, the date of division is the date of trial, and, other than that, only the s. 8 factors can be taken into consideration.

N.M. suggests that he is entitled to occupation rent. However, in the decision of Kazmierczak v. Kazmierczak, 2001 ABQB 610 at para. 95, Slatter J. concluded that it is not appropriate to award occupation rent when one spouse is living in the house with the children and is not making a claim for support or contribution toward the household expenses. The evidence before me does not demonstrate that N.M. made any significant contribution toward household expenses, nor do I consider the amounts I have awarded for insurance and property taxes to qualify as household expenses. Accordingly, the issue of occupation rent payable by C.L.M. to N.M. will not be a factor in this decision.

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