What Is the Family Property Act in Manitoba and How Does It Work?

If you are separating in Manitoba, you will probably hear about The Family Property Act. It is the law that sets out how assets built up during a relationship are accounted for and shared when the relationship ends.

This article explains in plain language who the Act covers, what it counts as property, how equal sharing works and what to watch for on deadlines and agreements.

This article covers the law of Manitoba.

What the Act does

Each spouse and common-law partner has the right, on application, to an accounting and, subject to the court's power to change the result, an equalization of assets. The Act divides the combined value into two equal shares unless the court orders otherwise.

Property rules are separate from support rules. Spousal support is dealt with under The Family Law Act, not this Act.

Who the Act applies to

It applies to spouses and to common-law partners. A common-law partner under The Family Property Act is a person who registered under The Vital Statistics Act or who cohabited in a conjugal relationship for at least three years. Whether the shorter one-year-with-a-child test used in The Family Law Act also matters for a property claim depends on your situation, so it is worth confirming with a lawyer.

Once someone meets the definition, they are covered by the equal-sharing accounting on the same footing as spouses. There is an exception: the Act generally excludes couples who had cohabited three years and separated before section 2.1 came into force, so they are not covered by equal sharing unless they resumed cohabiting and registered, or cohabited at least 90 days after that date. Because different statutes use different tests, a lawyer can confirm where you stand.

The family home is also touched by a separate statute, The Homesteads Act. An owner may not dispose of the homestead during the owner's lifetime unless the spouse or common-law partner consents in writing in the prescribed form. These rights exist whether or not the non-owner is on title. A spouse or common-law partner with homestead rights may register a homestead notice in the land titles office. How these rules fit with your property claim depends on your situation, so it is worth confirming with a lawyer.

Family assets and commercial assets

The Act sorts property into two groups. A family asset is owned by one or both partners and used for shelter, transportation, or household, educational, recreational, social or aesthetic purposes, including the family home and certain savings or chequing accounts. A commercial asset is any asset that is not a family asset.

• For family assets, the court may change equal sharing only if equalization would be grossly unfair or unconscionable.
• For commercial assets, the test is lower: the court may change it if equal sharing would be clearly inequitable, considering factors such as length of cohabitation, length of separation and any agreement.
• Conduct is disregarded unless it amounts to dissipation.

How a claim works and the deadlines

Property claims are made to the Court of King's Bench. The applicant must file and serve a sworn statement of assets and liabilities, and the respondent has 14 days to respond with a similar statement. The court may make interim orders.

Time limits are short. An application may not be made more than 60 days after the divorce becomes absolute or takes effect, and the court may extend that in specified circumstances. For common-law partners it is 60 days from registration of the dissolution if registered, or three years from when they began to live separate and apart if unregistered. To challenge dissipation or excessive gifts, you have two years from the transfer or dissipation, or its discovery.

Agreements, and what to do next

The Act does not apply to an asset disposed of by a spousal agreement or common-law relationship agreement, or made inapplicable by its terms, and an agreement can vary how the Act applies. Assets the agreement does not address remain subject to the Act. What a valid agreement needs, and when one can be set aside, depends on the facts and should be confirmed with a lawyer.

• Confirm whether you count as a spouse or common-law partner under this Act.
• Make a list of assets and debts, sorted into family and commercial.
• Collect any prenuptial, cohabitation or separation agreement.
• Note the date of separation and any divorce dates, then check your deadline.
• Get independent legal advice before signing anything.

Frequently asked questions