Is Property Divided Equally in Saskatchewan? When Courts Depart

When a relationship ends, one of the first questions is whether everything is simply cut down the middle. In Saskatchewan the starting point is equal sharing, but it is a starting point and not a guarantee.

This article explains the equal-division rule, how it applies to the family home, which property may be left out, and when a court can depart from an equal split. Your own facts matter a great deal, so treat this as a general guide.

This article covers the law of Saskatchewan.

Who is a spouse under The Family Property Act?

The Act covers married spouses. It also covers an unmarried person who is cohabiting or has cohabited with another as spouses continuously for not less than two years.

So a common-law partner who meets the two-year test is generally in the same position as a married spouse when it comes to dividing family property. The Supreme Court of Canada decision in Anderson v. Anderson, 2023 SCC 13, confirms that the Act applies to married spouses and to unmarried spouses who cohabited continuously for two years or more. Whether a child changes that two-year period depends on the Act itself, so confirm it with a lawyer if it matters to you.

The equal-division rule

Family property is distributed equally between spouses unless the court finds that an equal distribution would be unfair and inequitable.

In deciding that, the court considers factors that include any written agreement between the spouses and how long they cohabited. A short relationship or a signed agreement can therefore change the result.

Equal does not mean each item is split in half. It means the overall value is shared equally, and spouses often agree on who keeps which asset and balance the difference.

The family home has a stricter test

For the family home, equal distribution applies unless the court is satisfied it would be unfair and inequitable, having regard only to an extraordinary circumstance. There is also an exception where the spouse with the children would otherwise be treated unfairly.

The Court of Appeal in Phillips v. Phillips held that this threshold is more onerous than the one for other family property. In practical terms, it is harder to move away from equal sharing of the home than of other assets.

Property that may be exempt

Section 23 exempts certain property from distribution. The exemptions cover property owned before the relationship, gifts from third parties and inheritances. Keeping records of how and when each item was acquired helps show whether it falls within an exemption.

There are limits to that exemption:

• It expressly excludes the family home and household goods.
• The court can override the exemption where exempting the property would be unfair and inequitable.
• For unmarried partners, property acquired more than 24 months after cohabitation ended is also exempt.

Comparing the tests

What to do next

Time limits for applying, the treatment of pensions and rights to stay in the family home can all affect your position, and they depend on the Act and your facts. A lawyer can confirm them for your situation before you sign anything.

If your dispute heads to court, family law matters anywhere in Saskatchewan have been required since July 1, 2022 to attempt a family dispute resolution process by the close of pleadings before continuing with further court proceedings. You can apply to the court for an exemption where there has been interpersonal violence, the other parent has abducted a child, or there is other urgency.

• List everything you and your spouse own and owe, with dates and how each item was acquired.
• Gather any marriage, cohabitation or separation agreement.
• Note which assets were owned before the relationship, or came as gifts or inheritances.
• Collect recent statements for bank accounts, pensions, investments and debts.
• Speak with a lawyer before agreeing to a split or signing a settlement.

Frequently asked questions