Many Canadian families with a moderate degree of wealth create a family trust. A common type of trust names a parent or an adult child as a trustee, and names both adult and minor children as discretionary beneficiaries.
One of the most blurry property valuation issues in family law arises when a separating spouse has a discretionary interest in a family trust. While a discretionary beneficial interest in a trust created during the course of a marriage is usually excluded from that spouse’s net family property as a gift, a trust that predates the marriage and that still exists at the time of separation receives a different treatment. In that case, the value of the trust interest must be determined at both dates, a difficult valuation problem.
In Dillon v Dillon, a decision of Justice Gordon, one of the central issues was whether a marriage contract and an amending agreement were valid, given the disclosure the husband made of his interest in a discretionary family trust. There was contradictory evidence as to whether the husband’s interest in the discretionary trust was provided when the marriage contract was signed. However, when the parties signed an amendment to the marriage contract, the financial information provided by Mr.
The case of Mudronja v. Mudronja, another 2014 case, demonstrates the importance of the roles ascribed to each spouse in the trust settlement document.
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