Bosch v. Bosch 1991|36 RFL (3d) 302 (Ont.

CA) [1991] Nature of the Case: Marriage Doctrine: Parties are entitled to equalization upon separation unless said parties contract out of this right by express words or intent. A marriage contract providing for separate ownership of property during marriage cannot be construed to deal with equalization of value of assets on cases of marriage breakdown. Facts: The appellant husband and the respondent wife were married in the Netherlands in 1976. The husband owned a house in Woodstock, Ontario at the date of marriage which the parties moved into after their marriage. The parties entered into a marriage contract before their marriage. o The contract essentially provided that all property held by each party shall remain the property of the respective parties. 1. That all property, money, and rights of every nature and kind held by the parties hereto, whether held at the time of the marriage or obtained afterwards, shall remain the property of the respective parties but each shall contribute equally to the upkeep and maintenance of the household (and children). If both parties contribute to the purchase of any property for purposes of the household it shall be deemed to be held jointly in equal shares, and not in proportion to their respective contributions. The wife acknowledged that the purpose of the contract was to ensure that the house remained the exclusive property of the husband. Issue: Whether the matrimonial home was properly included in the calculation of the husband's net family property in view of the marriage contract. Held: The appeal should be dismissed with costs, subject to the variation that the equalization payment shall be paid in full on or before February 1, 1992. Ratio: The trial judge found that the contract did not exclude the matrimonial home from the calculation of the husband's net family property and, accordingly, awarded the wife an equalization payment of $79,250. o The trial judge also awarded the wife custody of the three children of the marriage and lump sum child support in the amount of $20,000. The husband appealed the decision. A marriage contract which provides only for ownership of property during the marriage has been held not to provide for a division of property under s. 4 of the Family Law Reform Act. This is even more compelling under the Family Law Act, 1986, which does not provide for a division of assets, but rather an equalization of the value of assets. o Therefore, a contract dealing with ownership of property during or after marriage may not prevail over the equalization provisions of the Act. The right to equalization is quite separate from any right of ownership. For the marriage contract to prevail over the equalization provisions of the Act, it must contain provisions which address in intent, if not explicitly, the position of

the parties on the division of assets between them on the basis of ownership or otherwise. o The parties did not do this under this contract. A matrimonial home is treated differently in the equalization process as there is no deduction if it was owned by one party prior to the marriage. o The parties could have agreed to exempt the value of the home from the equalization process. However, this marriage contract was silent not only as to entitlement on the dissolution of the marriage, but also as to their matrimonial home. The parties entered into the contract to ensure the house would continue to be owned by the husband. Beyond that, their intention is speculative. o There is nothing in the contract on the expressed or implied intentions of the parties that they intended to deprive the wife of an entitlement to share in the financial worth of her husband.