Written on behalf of Long Shariff & Associates
When a relationship ends, the parties will likely begin a process of moving toward separate households. Part of this involves dividing household contents and moving personal possessions. Some of these belongings can be of significant financial value, and parties should take some care to consider how each spouse may collect and retrieve personal items without obstruction. This includes making arrangements for each to recover items before disposing of them. Failure to do so can have financial consequences, as a spouse may advance a claim for the value of lost property.
Married & Common-Law Spouses Can Bring Claims to Recover Value of Lost Property
Each spouse is entitled to retain their own personal belongings on the breakdown of a relationship. However, these items may still be accounted for during equalization for married parties. Certain personal belongings that one spouse may own may carry significant monetary value. The value of these assets will have to be included in the net family property calculation unless the item is excluded. For instance, if one spouse owns a vehicle with a value of $60,000 as of the date of separation, that spouse can retain ownership of the car, though the value will be added to the list of that spouse’s property. Also, household contents are generally considered jointly owned by both spouses, regardless of who actually paid for the item.
Equalization under the Ontario Family Law Act does not apply to unmarried parties. This means there is no automatic entitlement to half of the value of property accumulated over the relationship. Each can retain their personal property without any claim from the other party.
In either case, issues may arise if one party disposes of or sells property belonging to the other. An asset whose value could have been included for equalization may have to be omitted. And unmarried parties may expose themselves to claims by the property owner for the lost value of items they dispose of, sell, or retain.
Man Granted Leave to Sue After Property Disposed of by Ex-Partner
Robertson v. Williams demonstrates how one party might pursue a claim against their former partner for losses relating to property. In that case, the parties were unmarried but had a long-term relationship. Mr. Williams was removed from their jointly-owned home and left most of his personal property at the residence. He later requested that the items of personal property be returned to him, subject to an adjustment for any items that Ms. Robertson disposed of. He was concerned that some of his possession might have been removed from the property.
The judge acknowledged that he had been prevented from returning to the property to retrieve any items due to the terms of an earlier order. However, he had also never brought a motion to attend at the property to retrieve possessions he had left behind. If possessions have been disposed of, they cannot be returned, though there may be compensation for the loss through some monetary award or judgement.
Justice Mulligan recognized this, suggesting that if Mr. Williams could establish the fair market value of such items, he may have a cause of action for the value of the items. In this case, the value of any loss would fall within the limits of the small claims court, and Mr. Williams was granted leave to commence a small claims court action respecting any missing items of personal property.
Claimant Must Establish the Existence and Value of Property
In Kyriacou v. Zikos, the applicant, Mr. Kyriacou, claimed damages for the loss of property from when he left the parties’ residence. He claimed he left behind personal effects and a truck, which he valued at approximately $49,500. He asserted a claim for conversion of his personal effects, tools, and truck that he alleged were sold or disposed of by the respondent, Ms. Zikos, suggesting she should be liable for the value of those items.
The judge determined that a claim for conversion cannot succeed when the items were essentially abandoned. The applicant left the items at the residence, and it was never suggested that the respondent had a duty to keep the property for him. Moreover, it was not clear that he had a reasonable expectation that his items would be preserved and returned to him. That the applicant had abandoned other belongings likely hindered this claim for damages.
Claim Failed as Applicant Made No Efforts to Retrieve Items, Could Not Prove Their Existence or Value
Justice Kimmel noted that Mr. Kyriacou left tools in a storage unit and defaulted on the payments for that unit when he left for Cyprus. His own admission at trial was that he “did not really care” what happened to those items. The judge found it reasonable to infer that he felt the same way about many of the personal effects and tools left behind at the residence. This conclusion was reinforced by the fact that he made no immediate efforts to try and retrieve them.
Although the respondent had no duty to keep the personal belongings, she did arrange to drop them off for the applicant when he eventually asked for their return. She also admitted that some of the applicant’s items were thrown away or donated. However, the applicant had the burden of proving the amount of damages he suffered. As he could not prove either the existence or the value of those lost items, the claim was dismissed.
Make Arrangements With Your Spouse to Collect Personal Belongings
When a relationship ends, and the parties transition to separate households, some personal items belonging to one party may be left behind. First, there should be a reasonable opportunity for the other party to collect their belongings and perhaps provide notice identifying the possessions left behind so arrangements can be made.
In many cases, separating couples might make arrangements between themselves without specific terms set out by a court. However, the court may intervene if the parties cannot agree on how to retrieve their personal items.
In Hao v. Wang, Justice Sutherland ordered the respondent to retrieve possessions from a matrimonial home. Each spouse was entitled to have a third party in attendance to witness the removal of items. If there was any dispute on the ownership of an item, it was to remain in the matrimonial home. Each party could then bring a motion to determine whether it was a personal possession that could be delivered to a party. This way, the parties were provided with a deliberate process through which personal items could be retrieved and ownership determined.
Give Notice to Your Spouse Before Disposing of Their Personal Property
Rather than being too eager to dispose of a spouse’s belongings when one spouse moves out, making arrangements concerning the removal of property is prudent. This includes providing notice to the party and ensuring that property left behind is truly abandoned before disposing of or selling it.
Contact Long Shariff & Associates for Reliable Advice After Separation
The skilled family lawyers at Long Shariff & Associates regularly advise clients entering or leaving marriages and common-law relationships on their rights and obligations. We provide comprehensive assistance on all aspects of separation and divorce, including division of property issues. We proudly serve clients in Stouffville, Markham, Aurora, and the surrounding York and Durham regions. To schedule a confidential consultation with a member of our team, please call 905-591-4545 or contact us online.