The old Matrimonial Property Act's section 37(2) contained a term stating that individuals could enter into agreements contracting out of the MPA in contemplation of marriage. This was replaced by another term in the FPA, and there is no longer any reference to contemplation of marriage. Section 37(1) reads "...if, in respect of that property, the spouses or adult interdependent partners have entered into a subsisting written agreement with each other..." While I would hope that would be interpreted to only refer to their subsequent status, there's a risk that could be interpreted to mean that they need to be spouses or AIPs to enter into agreements.

Even more dangerous is section 37(5), which reads "An agreement under subsection (1) that is entered into by a person purporting to be an adult interdependent partner, knowing or in circumstances in which the person ought to have known that there was no valid adult interdependent relationship within the meaning of the Adult Interdependent Relationships Act, is unenforceable by that person." It's inevitable that childless couples will sign agreements calling them AIPs before the three year mark, without realizing that they've entered into an invalid agreement. It will also inevitably lead to much litigation where people dispute their AIP status. I don't see any benefit from leaving this provision in, if people are using agreements for fraudulent purposes such as obtaining financing then there are other remedies.

Subject to section 8 factors and exemptions, isn't the whole goal to leave each spouse with equal resources? We know that to pull money out of a house, you have to pay commission (likely 7% on the first $100,000 and 3% thereafter) as well as at least $1000 in legal and land titles fees. We know that if you elect to sell without a realtor, purchasers will generally be looking for a deal on the sale price. Each dollar in a bank account is simply worth more than each dollar in equity in a home. It's the same with taxable assets. Yet we often don't deduct taxes and sale costs unless there's an impending sale (except for taxes on RRSPs, which I don't understand the differential treatment other than that they're somewhat easier to calculate).

Some have argued that the sale costs and taxes may never be materialized during their lifetime, but isn't that the same with taxes on RRSPs? Doesn't it mean that they're just leaving their beneficiaries less when compared to other assets? Most assets probably will be withdrawn during someone's lifetime anyways, whether it's downsizing to a retirement home, selling a business, or using funds on retirement. Shouldn't the law be based on probably scenarios? At the end of the day, these assets are just worth less, and fairness requires that subject to s8 and exemptions, each spouse should have equal actual resources.

This was the Alberta Law Reform Institute's (ALRI) recommendation in their Final Report 107. See https://www.alri.ualberta.ca/portfolio-items/matrimonial-property-act-valuation-date/

This change would remove issues created by overlapping relationships, especially now that a spouse who's no longer cohabiting with their spouse may also have a claim against them by a new partner from the commencement of their relationship.

This would also reduce legal fees and lead to quicker resolutions, because we wouldn't have to constantly recalculate and repeatedly exchange disclosure, and wouldn't have to argue about issues like property acquired after the separation or whether a spouse should be entitled to a credit for debts paid down after the separation.

Jackson v Jackson, 1989 ABCA 197 and Harrower v Harrower, 1989 CanLII 221 (AB CA) interpreted section 36 of the Family Property Act to mean that when property is placed into a jointly-owned exemption, any exemption should be halved.

When a spouse uses their savings for the down payment on a home, they're intending to facilitate financing or reduce CMHC fees, they're not intending to lose a part of their life savings upon separation. They shouldn't be punished for doing something that helped both spouses during the relationship. Similarly, when a spouse places another spouse on the title to their home, they're likely doing so for survivorship should they pass away, or so that the other spouse can share in the growth while the mortgage is paid down during the relationship.

If a spouse really is intending to gift part of their exempt property, then clear evidence of that intention should be required. So many people are caught off guard and surprised by this rule. It's also absurd in the context of very short relationships, what if a couple is only married for a few months before separating, but the mortgage-free house is placed into joint names during that period? Why should the spouse that didn't contribute receive an enormous windfall? I've seen this scenario. This rule is just an archaic windfall to the spouse with fewer assets. But what if the spouse with the exemption is on a limited income, for example due to a disability? If the exemption is a personal injury settlement or insurance for an injury, this sum might be an award for their entire future lost income, without any chance to replenish it.