Should Value of Work Client Contracts be Part of an Equalization Calculation?

Justice Hebner in Abitbol v. Abitbol, 2020 ONSC 4619 addressed this issue. He started by analyzing the law first:

I start with the definition of property set out in the Family Law Act, R.S.O. 1990, c. F.3, s. 4(1):

“property” means any interest, present or future, vested or contingent, in real or personal property and includes,

(a) property over which a spouse has, alone or in conjunction with another person, a power of appointment exercisable in favour of himself or herself,

(b) property disposed of by a spouse but over which the spouse has, alone or in conjunction with another person, a power to revoke the disposition or a power to consume or dispose of the property, and

(c) in the case of a spouse’s rights under a pension plan, the imputed value, for family law purposes, of the spouse’s interest in the plan, as determined in accordance with section 10.1, for the period beginning with the date of the marriage and ending on the valuation date.

The Judge dealt with the definition of property and its scope in various cases, which includes:

• A tractor and construction equipment dealership business, as in Poirier v. Poirier, 2005 CanLII 38106 (ON SC)

• A book of business of a self-employed financial advisor: see Mavis v. Mavis, 2005 CarswellOnt 1649 (S.C.).

• A medical practice: see Forest v. Hill, 1991 CarswellOnt 272 (Gen. Div.).

• A real estate commission, even though the transaction closed after the date of separation: see Cosentino v. Cosentino, 2015 ONSC 271.

But, disability pension is not included as property as per the Court of Appeal, in Lowe v. Lowe (2006), 2006 CanLII 804 (ON CA), where the Court analyzed stating – “The disability pension bore no relationship to the marriage partnership but rather arose because of a disability that impeded the recipient's capacity to earn a livelihood. It followed, reasoned Misener J., that the stream of benefits to be received post separation should not be capitalized and included as family property for purposes of equalization. The benefits would be taken into consideration with respect to spousal support, but they fell outside the category of “property” and could be distinguished from a pension earned as part of a spouse's remuneration during the marriage.”

In this case, the Court held that the contracts must be included as an asset in the valuation of the business. So, careful when you sign those expensive contracts and then have a divorce – these contracts are going to be included for purposes of equalization!

These are extremely complex analyses and cases. It needs careful research, extensive analysis, thinking and careful representation. We will do the heavy-lifting for you at Shankar Law and we are happy to assist and guide you through whatever challenges you have in your family life.

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