Trustee couldn’t bring equalization claim; paramountcy doctrine didn’t come into play

Family Law – Division of property - Miscellaneous

Parties were married in 2003 and separated in 2015. Husband entered bankruptcy and trustee wished to make equalization claim. Hearing held regarding whether equalization claim could be brought. Trustee could not bring equalization claim. Equalization claim is inchoate until exercised, and once exercised, it takes on new form as “property” and is subject to Bankruptcy and Insolvency Act. Until action commences, right is not assignable and remains only as amorphous possibility. Right to equalization of net family property does not become property within meaning of Act unless and until right to commence such claim is exercised by spouse. Difference between claims which are “personal in nature” as opposed to personal as between spouses did not allow trustee to commence claim for equalization. Paramountcy doctrine did not come into play.

Rusinek & Associates v. Arachchilage & Baliah (2020), 2020 CarswellOnt 2176, 2020 ONSC 1090, C. Gilmore J. (Ont. S.C.J. [Commercial List]).

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