Net Equalization (Family)

Schreyer v. Schreyer, 2011 SCC 35 (CanLII), [2011] 2 SCR 605

[17] Proprietary interests are not granted until the stage of payment of the equalization claim, at which point they may be granted as a form of execution, to ensure that the payment is actually made. Section 17 FPA provides that the amount established in the accounting may be paid by means of a money payment, a transfer of assets, or both. The mode of payment may be agreed on by the parties or ordered by the court. Section 17 reads as follows:

17 The amount shown by an accounting under section 15 to be payable by one spouse or common-law partner to the other may be satisfied

(a) by payment of the amount in a lump sum or by instalments; or

(b) by the transfer, conveyance or delivery of an asset or assets in lieu of the amount; or

(c) by any combination of clauses (a) and (b);

as the spouses or common-law partners may agree or, in the absence of agreement, as the court upon the application of either spouse or common-law partner under this Act may order, taking into account the effect of any interim order made under section 18.1.

[18] Under the FPA, an equalization claim is a debt owed by one spouse to the other. The Court of Appeal did not err in treating the appellant’s claim as a debt. The characterization of the equalization claim is particularly important here — in the context of the application of the BIA — for the purpose of determining whether the appellant’s claim survived her husband’s discharge from bankruptcy.