About
Matrilaw
Matrilaw is a Ontario family law blog created by Donald Kilpatrick, a London lawyer.
Amending legislation is not easy. What may make the difference is the support of lawyers, law associations and law profs across the province, so please send a letter to Mr. Doug Downey. If you want to cc me, as well, there will be a way to gauge the support this initiative is receiving. Also, could you please forward the matrilaw.com URL to those of your colleagues who may find this of interest.
Short Bio
My name is Donald Kilpatrick. I am a family law lawyer in London and was called to the bar in 1976. My practice has been primarily in the area of family law since 1986, including child representation which I did from 1977 until 2013. In recent years I have contributed to “McLeod’s Ontario Family Law Rules Annotated” published annually by Thomson Reuters.
Here Is the $64 Question:
Why have the definitions never been corrected?
The following is taken from the Family Statute Law Amendment Act, 2009, c. 11 – Bill 133. Have a look at what the Attorney General was willing change in the calculation of the value of date of marriage property [the subsection is enlarged and the words added by the amendment are underlined]:
Family Law Act
22. (1) Clause (a) of the definition of “net family property” in subsection 4 (1) of the Family Law Act is repealed and the following substituted:
(a) the spouse’s debts and other liabilities, including, for greater certainty, any contingent tax liabilities in respect of the property, and
(2) Clause (b) of the definition of “net family property” in subsection 4 (1) of the Family Law Act is repealed and the following substituted:
(b) the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage, after deducting the spouse’s debts and other liabilities, other than debts or liabilities related directly to the acquisition or significant improvement of a matrimonial home, calculated as of the date of the marriage; (“biens familiaux nets”)
In 2009, 20 years after the Act came into effect, the AG would have been aware of the widespread criticism of the definition “net family property”, so why did the AG not correct that obvious flaw in the legislation by also striking out the words “other than matrimonial home” in the first line?
The 2009 amendment to legislation was necessary so that the wording of the calculation would be logical and in accord with the purpose of Part I but since the early 1990s courts in Ontario had been deducting those particular debts in calculating the value of the date of marriage property as if the 2009 amendment had already been made. Logic demanded that the calculation be done in that manner.
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