In Spencer v Riesberry at issue was whether the home that the husband and wife lived in during their marriage was a matrimonial home within the meaning of section 18(1) of the Family Law Act. It was clear that the home had been the family residence since the couple was married in 1994.
However, it was not clear that the wife had an interest in the property within the meaning of section 18(1). In 1993, the home and three other properties were purchased by the wife’s mother and were held in trust for the mother and her four children as the Spencer Family Realty Trust (SFRT). The trust agreement provided that the mother had the right to use the trust property during her lifetime and that on her death, the trust property was to be divided in equal shares for the children alive at the time.
In 2005, the trust agreement was amended to remove the mother as trustee and make the wife and her sister the new trustees of the SFRT. At trial, the Court held that the home was not a matrimonial home as the wife did not have an interest in the property. The Ontario Court of Appeal affirmed this decision. It was found that the wife holds a contingent beneficial interest in the SFRT as a whole but has no interest in any specific property held by the trust. Her entitlement under the trust is contingent on her being alive at the time of her mother’s death. Until that time, the wife as a beneficiary has no interest in the specific assets of the trust unless the terms of the trust agreement expressly provide otherwise.
Moreover, the wife’s role as a trustee is separate and distinct from her role as a beneficiary. Her role as trustee also fails to create an interest in property within the meaning of section 18(1) of the Family Law Act.
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