1(1) In this Act

"spouse" where used in relation to another spouse means the person who is married to that other spouse, and

"spouses" means two persons who are married to each other;

1(1) In this Act

"spouse" where used in relation to another spouse means the person who is married to that other spouse, and

"spouses" means two persons who are married to each other;

"common-law partner" means a person who, not being married to the other person, cohabited with him or her in a conjugal relationship

(a) for a period of not less than 3 years, or

(b) for a period of at least one year and they are together the parents of a child;

"common-law partner" where used in relation to another common-law partner means the person who is cohabiting with that other common-law partner, and "common-law partners" means two persons who are cohabiting together;

"common-law relationship" means the relationship between two persons who are common-law partners of each other;

(a) a marital home,

(b) money in a savings account, chequing account or current account with a bank, trust company, credit union or other financial institution where the account is ordinarily used for shelter or transportation or for household, educational, recreational, social or aesthetic purposes, and saving bonds and deposit receipts intended to be used for those purposes.

(c) where an asset owned by a corporation, partnership or trustee would, if it were owned by a spouse, be a family asset, shares in the corporation or an interest in the partnership or trust owned by the spouse having a market value equal to the value of the benefit the spouse has in respect of the asset,

(d) an asset over which a spouse has, either alone or in conjunction with another person, a power of appointment exercisable in favour of the spouse, if the asset would be a family asset if it were owned by the spouse, and

(e) an asset disposed of by a spouse but over which the spouse has, either alone or in conjunction with another person, a power to revoke the disposition or a power to use or dispose of the asset, if the asset would be a family asset if it were owned by the spouse;

(a) a family home,

(b) money in a savings account, chequing account or current account with a bank, trust company, credit union or other financial institution where the account is ordinarily used for shelter or transportation or for household, educational, recreational, social or aesthetic purposes, and saving bonds and deposit receipts intended to be used for those purposes.

(c) where an asset owned by a corporation, partnership or trustee would, if it were owned by a spouse or common-law partner, be a family asset, shares in the corporation or an interest in the partnership or trust owned by the spouse or common-law partner having a market value equal to the value of the benefit the spouse or common-law partner has in respect of the asset,

(d) an asset over which a spouse or common-law partner has, either alone or in conjunction with another person, a power of appointment exercisable in favour of the spouse or common-law partner, if the asset would be a family asset if it were owned by the spouse or common-law partner, and

(e) an asset disposed of by a spouse or common-law partner but over which the spouse or common-law partner has, either alone or in conjunction with another person, a power to revoke the disposition or a power to use or dispose of the asset, if the asset would be a family asset if it were owned by the spouse or common-law partner;

(a) any marriage contract or marital agreement, or

(b) any separation agreement, or

(c) release or quit claim deed,

in writing, or any other written agreement or other writing between spouses, made within Manitoba or elsewhere before or after the coming into force of this Act and either during marriage or contemplation of marriage, affecting all or any of the assets of the spouses in a manner described in section 5;

(a) any marriage contract, marital agreement or cohabitation agreement, or

(b) any separation agreement, or

(c) release or quit claim deed,

in writing, or any other written agreement or other writing between spouses or common-law partners, made within Manitoba or elsewhere before or after the coming into force of this Act and either during marriage or cohabitation, or contemplation of marriage or cohabitation, affecting all or any of the assets of the spouses in a manner described in section 5;

APPLICATION OF ACT

DIVISION 1

APPLICATION TO SPOUSES

Married persons

2(1) Except as herein otherwise provided, this Act applies to all spouses, whether married before or after the coming into force of this Act and whether married within Manitoba or a jurisdiction outside of Manitoba,

(a) if the habitual residence of both spouses is in Manitoba; or

(b) where each of the spouses has a different habitual residence, if the last common habitual residence of the spouses was in Manitoba; or

(c) where each of the spouses has a different habitual residence and the spouses have not established a common habitual residence since the solemnization of their marriage, if the habitual residence of both at the time of the solemnization was in Manitoba.

APPLICATION OF ACT

DIVISION 1

APPLICATION TO SPOUSES AND COMMON-LAW PARTNERS

Married persons and common-law partners

2(1) Except as herein otherwise provided, this Act applies to all spouses and common-law partners, whether married or cohabiting before or after the coming into force of this Act and whether married within Manitoba or a jurisdiction outside of Manitoba,

(a) if the habitual residence of both spouses or common-law partners is in Manitoba; or

(b) where each of the spouses or common-law partners has a different habitual residence, if the last common habitual residence of the spouses or common-law partners was in Manitoba; or

(c) where each of the spouses has a different habitual residence and the spouses have not established a common habitual residence since the solemnization of their marriage, if the habitual residence of both at the time of the solemnization was in Manitoba.

2(4) The provisions of this Act respecting an application for an accounting and equalization of the assets of spouses during the lives of the spouses do not apply to spouses who were living separate and apart from each other on May 6, 1977, unless those spouses, after that date, resume cohabitation for a period of more than 90 days.

2(4) The provisions of this Act respecting an application for an accounting and equalization of the assets of spouses or common-law partners during the lives of the spouses or common-law partners do not apply to spouses who were living separate and apart from each other on May 6, 1977, and do not apply to common-law partners who were living separate and apart from each other on December 31, 2001, unless those spouses or common-law partners, after those dates that date, resume cohabitation for a period of more than 90 days.

3 Where this Act applies to a spouse under section 2 it also applies to every asset of the spouse except as herein otherwise provided, and where this Act does not apply to a spouse by reason of any provision of section 2 it also does not apply to any asset of the spouse notwithstanding any other provision of the Act.

3 Where this Act applies to a spouse or common-law partner under section 2 it also applies to every asset of the spouse or common-law partner except as herein otherwise provided, and where this Act does not apply to a spouse or common-law partner by reason of any provision of section 2 it also does not apply to any asset of the spouse or common-law partner notwithstanding any other provision of the Act.

4(1) This Act does not apply to any asset acquired by a spouse

(a) while married to but living separate and apart from the other spouse; or

(b) while married to a former spouse unless the asset was acquired while living separate and apart from the former spouse and it can be shown that the asset was acquired in contemplation of marriage to the present spouse; or

(c) while unmarried.

4(1) This Act does not apply to any asset acquired by a spouse or common-law partner

(a) while married to but living separate and apart from the other spouse or common-law partner; or

(b) while married to a former spouse or cohabiting with a former common-law partner unless the asset was acquired while living separate and apart from the former spouse or former common-law partner and it can be shown that the asset was acquired in contemplation of marriage or cohabitation to the present spouse or common-law partner; or

(c) while unmarried and not in a common-law relationship.

4(2) Notwithstanding clause 1(c), this Act applies to any asset acquired by a spouse prior to but in specific contemplation of the marriage to the other spouse.

4(2) Notwithstanding clause 1(c), this Act applies to any asset acquired by a spouse or common-law partner prior to but in specific contemplation of the marriage to the other spouse or cohabitation with the common-law partner.

4(3) Where by reason of any provision of subsection (1) this Act does not apply to an asset of a spouse, then, with respect to all assets other than those exempted from the application of this Act by section 7, in any accounting under Part II, notwithstanding that provision,

(a) any appreciation in the value of the asset that occurred while the spouse was married to and cohabiting with the other spouse shall be added to the inventory of assets of that spouse;

(b) any depreciation in the value of the asset that occurred while the spouse was married to and cohabiting with the other spouse shall be deducted from the inventory of assets of that spouse; and

(c) any income from the asset earned while the spouse was married to and cohabiting with the other spouse shall be treated in the same way as income from an asset to which this Act applies.

4(3) Where by reason of any provision of subsection (1) this Act does not apply to an asset of a spouse or common-law partner, then, with respect to all assets other than those exempted from the application of this Act by section 7, in any accounting under Part II, notwithstanding that provision,

(a) any appreciation in the value of the asset that occurred while the spouse or common-law partner was married to and cohabiting with the other spouse or common-law partner shall be added to the inventory of assets of that spouse or common-law partner;

(b) any depreciation in the value of the asset that occurred while the spouse was married to and cohabiting with the other spouse or common-law partner shall be deducted from the inventory of assets of that spouse or common-law partner; and

(c) any income from the asset earned while the spouse was married to and cohabiting with the other spouse or common-law partner shall be treated in the same way as income from an asset to which this Act applies.

4(4) Where under subsection (3) the combined depreciation in all assets of a spouse exceeds the combined value of any appreciation in and income from those assets, the excessive portion of the depreciation shall not be deducted except pursuant to the order of the court made upon an application under Part III.

4(4) Where under subsection (3) the combined depreciation in all assets of a spouse or common-law partner exceeds the combined value of any appreciation in and income from those assets, the excessive portion of the depreciation shall not be deducted except pursuant to the order of the court made upon an application under Part III.

5(1) This Act does not apply to any asset disposed of by a spousal agreement or as to which the Act is made inapplicable by the terms of a spousal agreement, but where a spousal agreement is silent as to an asset this Act if otherwise applicable to the asset applies as if the spousal agreement did not exist.

5(1) This Act does not apply to any asset disposed of by a spousal or cohabitation agreement or as to which the Act is made inapplicable by the terms of a spousal agreement, but where a spousal or cohabitation agreement is silent as to an asset this Act if otherwise applicable to the asset applies as if the spousal or cohabitation agreement did not exist.

5(2) Where a spousal agreement by its terms makes a provision of this Act inapplicable to an asset, that provision does not apply to the asset but the remaining provisions of the Act if otherwise applicable to the asset apply as if the spousal agreement did not exist.

5(2) Where a spousal or cohabitation agreement by its terms makes a provision of this Act inapplicable to an asset, that provision does not apply to the asset but the remaining provisions of the Act if otherwise applicable to the asset apply as if the spousal or cohabitation agreement did not exist.

5(3) Where a spousal agreement by its terms varies any provision of this Act in its application to an asset, that provision if otherwise applicable to the asset applies as varied and the remaining provisions of the Act if otherwise applicable to the asset apply in unaltered form.

5(3) Where a spousal or cohabitation agreement by its terms varies any provision of this Act in its application to an asset, that provision if otherwise applicable to the asset applies as varied and the remaining provisions of the Act if otherwise applicable to the asset apply in unaltered form.

6(1) No provision of this Act, nor the giving of an accounting under this Act, vests any title to or interest in any asset of one spouse in the other spouse, and the spouse who owns the asset may, subject to subsections (7), (8), (9) and (10) and to any order of the court under Part III or IV, sell, lease, mortgage, hypothecate, repair, improve, demolish, spend or otherwise deal with or dispose of the asset to all intents and purposes as if this Act had not been passed.

6(1) No provision of this Act, nor the giving of an accounting under this Act, vests any title to or interest in any asset of one spouse or common-law partner in the other spouse or common-law partner, and the spouse or common-law partner who owns the asset may, subject to subsections (7), (8), (9) and (10) and to any order of the court under Part III or IV, sell, lease, mortgage, hypothecate, repair, improve, demolish, spend or otherwise deal with or dispose of the asset to all intents and purposes as if this Act had not been passed.

6(2) Notwithstanding subsection (1), spouses each have an equal right to the use and enjoyment of their marital home, but the right is subject to any order of a court

(a) made under The Family Maintenance Act; or

(b) made in or as incidental or ancillary to a proceeding in a family proceeding as defined in The Queen's Bench Act;

whereby one spouse is given possession of the marital home to the exclusion of the other.

6(2) Notwithstanding subsection (1), spouses or common-law partners each have an equal right to the use and enjoyment of their marital family home, but the right is subject to any order of a court

(a) made under The Family Maintenance Act; or

(b) made in or as incidental or ancillary to a proceeding in a family proceeding as defined in The Queen's Bench Act;

whereby one spouse or common-law partner is given possession of the marital family home to the exclusion of the other.

6(3) Notwithstanding subsection (1), spouses each have an equal right to the use and enjoyment of any family asset, other than their marital home, that is ordinarily used or enjoyed by both of them, subject to any order made in respect of the asset under

(a) clause 17(b);

(b) subsection 18.1(1); or

(c) The Domestic Violence and Stalking Prevention, Protection and Compensation Act.

6(3) Notwithstanding subsection (1), spouses or common-law partners each have an equal right to the use and enjoyment of any family asset, other than their marital family home, that is ordinarily used or enjoyed by both of them, subject to any order made in respect of the asset under

(a) clause 17(b);

(b) subsection 18.1(1); or

(c) The Domestic Violence and Stalking Prevention, Protection and Compensation Act.

6(7) Where

(a) a spouse, before or after the coming into force of this Act but after May 6, 1977, dissipates an asset in whole or in part; and

(b) the other spouse, before the expiry of two years from the date of the dissipation referred to in clause (a) or from the date of the discovery thereof, makes application to the court under this Act for an accounting and division of assets;

the value of the dissipated asset or the dissipated portion thereof, as the case may be, shall be added to the inventory of assets of the spouse in the accounting.

6(7) Where

(a) a spouse or common-law partner, before or after the coming into force of this Act but after May 6, 1977, dissipates an asset in whole or in part; and

(b) the other spouse or common-law partner, before the expiry of two years from the date of the dissipation referred to in clause (a) or from the date of the discovery thereof, makes application to the court under this Act for an accounting and division of assets;

the value of the dissipated asset or the dissipated portion thereof, as the case may be, shall be added to the inventory of assets of the spouse or common-law partner in the accounting.

6(8) Where

(a) a spouse, before or after the coming into force of this Act but after May 6, 1977, transfers an asset to a third person by way of gift, and the gift is excessive in whole or in part; and

(b) the other spouse, before the expiry of two years from the date of the transfer referred to in clause (a) or from the date of the discovery thereof, applies to the court under this Act for an accounting and division of assets;

the value of the asset or the excessive portion thereof, as the case may be, shall be added to the inventory of assets of the spouse in the accounting.

6(8) Where

(a) a spouse or common-law partner, before or after the coming into force of this Act but after May 6, 1977, transfers an asset to a third person by way of gift, and the gift is excessive in whole or in part; and

(b) the other spouse or common-law partner, before the expiry of two years from the date of the transfer referred to in clause (a) or from the date of the discovery thereof, applies to the court under this Act for an accounting and division of assets;

the value of the asset or the excessive portion thereof, as the case may be, shall be added to the inventory of assets of the spouse or common-law partner in the accounting.

6(9) Where

(a) a spouse, before or after the coming into force of this Act but after May 6, 1977, transfers an asset to a third person for inadequate consideration;

(b) the transfer referred to in clause (a) is effected by the spouse with the intention of defeating the rights of the other spouse under this Act; and

(c) the other spouse, before the expiry of two years from the date of the transfer referred to in clause (a) or from the date of the discovery thereof, applies to the court under this Act for an accounting and division of assets;

the amount of the inadequacy in the consideration shall be added to the inventory of assets of the spouse in the accounting.

6(9) Where

(a) a spouse or common-law partner, before or after the coming into force of this Act but after May 6, 1977, transfers an asset to a third person for inadequate consideration;

(b) the transfer referred to in clause (a) is effected by the spouse or common-law partner with the intention of defeating the rights of the other spouse or common-law partner under this Act; and

(c) the other spouse or common-law partner, before the expiry of two years from the date of the transfer referred to in clause (a) or from the date of the discovery thereof, applies to the court under this Act for an accounting and division of assets;

the amount of the inadequacy in the consideration shall be added to the inventory of assets of the spouse or common-law partner in the accounting.

6(10) In the circumstances described in subsection (8) or (9), where the spouse effecting the transfer is unable to satisfy any amount payable to the other spouse upon an equalization of assets under this Act, recovery of the value of the excessive gift or excessive portion of the gift or of the amount of the inadequacy in consideration, up to the total of the unsatisfied amount or unsatisfied portion of the amount payable upon the equalization, may be made from the transferee of the asset by application to the court.

6(10) In the circumstances described in subsection (8) or (9), where the spouse or common-law partner effecting the transfer is unable to satisfy any amount payable to the other spouse or common-law partner upon an equalization of assets under this Act, recovery of the value of the excessive gift or excessive portion of the gift or of the amount of the inadequacy in consideration, up to the total of the unsatisfied amount or unsatisfied portion of the amount payable upon the equalization, may be made from the transferee of the asset by application to the court.

7(1) This Act does not apply to any asset acquired by a spouse by way of gift or trust benefit from a third person, unless it can be shown that the gift or benefit was conferred with the intention of benefiting both spouses.

7(1) This Act does not apply to any asset acquired by a spouse or common-law partner by way of gift or trust benefit from a third person, unless it can be shown that the gift or benefit was conferred with the intention of benefiting both spouses or common-law partners.

7(2) This Act does not apply to the proceeds of the surrender or the cash surrender value of any insurance policy where the premiums of the policy were paid by a third person by way of gift in favour of a spouse, unless it can be shown that the premiums were paid with the intention of benefiting both spouses.

7(2) This Act does not apply to the proceeds of the surrender or the cash surrender value of any insurance policy where the premiums of the policy were paid by a third person by way of gift in favour of a spouse or common-law partner, unless it can be shown that the premiums were paid with the intention of benefiting both spouses or common-law partners.

7(3) This Act does not apply to any asset acquired by a spouse by way of inheritance, unless it can be shown that the inheritance was devised or bequeathed with the intention of benefiting both spouses.

7(3) This Act does not apply to any asset acquired by a spouse or common-law partner by way of inheritance, unless it can be shown that the inheritance was devised or bequeathed with the intention of benefiting both spouses or common-law partners.

7(4) Any income from, or appreciation or depreciation in the value of, an asset acquired in the manner described in subsection (1), (2) or (3) shall not be included in any accounting under Part II, unless it can be shown that the gift was conferred or the inheritance devised or bequeathed, as the case may be, with the intention that the income or appreciation should benefit both spouses.

7(4) Any income from, or appreciation or depreciation in the value of, an asset acquired in the manner described in subsection (1), (2) or (3) shall not be included in any accounting under Part II, unless it can be shown that the gift was conferred or the inheritance devised or bequeathed, as the case may be, with the intention that the income or appreciation should benefit both spouses or common-law partners.

8(1) This Act does not apply to the proceeds of any damage award or settlement or insurance claim made in favour of a spouse for personal injury, or disability, except to the extent that the proceeds are compensation for loss to both spouses.

8(1) This Act does not apply to the proceeds of any damage award or settlement or insurance claim made in favour of a spouse or common-law partner for personal injury, or disability, except to the extent that the proceeds are compensation for loss to both spouses or common-law partners.

10 This Act does not apply to any asset that has already been shared equally between spouses, or that is acquired by one spouse from the other by virtue of a sharing of assets under this Act.

10 This Act does not apply to any asset that has already been shared equally between spouses or common-law partners, or that is acquired by one spouse or common-law partner from the other by virtue of a sharing of assets under this Act.

11(1) In an accounting under this Act, the liabilities of a spouse other than those relating to assets that are exempt from the accounting by sections 4 and 7 shall be deducted from the total inventory of the assets of that spouse.

11(1) In an accounting under this Act, the liabilities of a spouse or common-law partner other than those relating to assets that are exempt from the accounting by sections 4 and 7 shall be deducted from the total inventory of the assets of that spouse or common-law partner.

13 Spouses each have the right upon application to an accounting and, subject to section 14, an equalization of assets in accordance with this Part.

13 Spouses or common-law partners each have the right upon application to an accounting and, subject to section 14, an equalization of assets in accordance with this Part.

14(2) The court upon the application of either spouse under Part III may order that, with respect to the commercial assets of the spouses, the amount shown by an accounting under section 15 to be payable by one spouse to the other be altered if the court is satisfied that equalization would be clearly inequitable having regard to any circumstances the court deems relevant including

(a) the unreasonable impoverishment by either spouse of the family assets;

(b) the amount of the debts and liabilities of each spouse and the circumstances in which they were incurred;

(c) any spousal agreement between the spouses;

(d) the length of time that the spouses have cohabited with each other during their marriage;

(e) the length of time that the spouses have lived separate and apart from each other during their marriage;

(f) whether either spouse has assets of an extraordinary value to which this Act does not apply by reason of their having been acquired by way of gift or inheritance;

(g) the nature of the assets; and

(h) the extent to which the financial means and earning capacity of each spouse have been affected by the responsibilities and other circumstances of the marriage.

14(2) The court upon the application of either spouse or common-law partner under Part III may order that, with respect to the commercial assets of the spouses or common-law partners, the amount shown by an accounting under section 15 to be payable by one spouse or common-law partner to the other be altered if the court is satisfied that equalization would be clearly inequitable having regard to any circumstances the court deems relevant including

(a) the unreasonable impoverishment by either spouse or common-law partner of the family assets;

(b) the amount of the debts and liabilities of each spouse or common-law partner and the circumstances in which they were incurred;

(c) any spousal or cohabitation agreement between the spouses or common-law partners;

(d) the length of time that the spouses or common-law partners have cohabited with each other during their marriage or cohabitation;

(e) the length of time that the spouses or common-law partners have lived separate and apart from each other during their cohabitation;

(f) whether either spouse or common-law partner has assets of an extraordinary value to which this Act does not apply by reason of their having been acquired by way of gift or inheritance;

(g) the nature of the assets; and

(h) the extent to which the financial means and earning capacity of each spouse or common-law partner have been affected by the responsibilities and other circumstances of the marriage or cohabitation.

14(3) In exercising its discretion under this section, no court shall have regard to conduct on the part of a spouse unless that conduct amounts to dissipation.

14(3) In exercising its discretion under this section, no court shall have regard to conduct on the part of a spouse or common-law partner unless that conduct amounts to dissipation.

15(1) In an accounting of assets between spouses under this Act, there shall be ascertained

(a) the value of the total inventory of assets of each spouse, after adding to or deducting from the inventory such amounts as are required under this Act to be added or deducted;

(b) the value of the share to which each spouse is entitled upon the division, to be determined by combining the values ascertained under clause (a) and dividing the total into two equal shares or, where the application for an accounting is not under Part IV, such other shares as the court may under section 14 order; and

(c) the amount payable by one spouse to the other in order to satisfy the share of each spouse as determined under clause (b).

15(1) In an accounting of assets between spouses or common-law partners under this Act, there shall be ascertained

(a) the value of the total inventory of assets of each spouse or common-law partner, after adding to or deducting from the inventory such amounts as are required under this Act to be added or deducted;

(b) the value of the share to which each spouse or common-law partner is entitled upon the division, to be determined by combining the values ascertained under clause (a) and dividing the total into two equal shares or, where the application for an accounting is not under Part IV, such other shares as the court may under section 14 order; and

(c) the amount payable by one spouse or common-law partner to the other in order to satisfy the share of each spouse or common-law partner as determined under clause (b).

16 In any accounting under section 15, the closing date for the inclusion of assets and liabilities in the accounting, and the valuation date for each asset and liability shall be as the spouses may agree and, in the absence of agreement,

(a) the date when the spouses last cohabited with each other; or

(b) where the spouses continue to cohabit with each other, the date either of them makes an application to the court under Part III for an accounting of assets.

16 In any accounting under section 15, the closing date for the inclusion of assets and liabilities in the accounting, and the valuation date for each asset and liability shall be as the spouses or common-law partners may agree and, in the absence of agreement,

(a) the date when the spouses or common-law partners last cohabited with each other; or

(b)where the spouses or common-law partners continue to cohabit with each other, the date either of them makes an application to the court under Part III for an accounting of assets.

17 The amount shown by an accounting under section 15 to be payable by one spouse to the other may be satisfied

(a) by payment of the amount in a lump sum or by instalments; or

(b) by the transfer, conveyance or delivery of an asset or assets in lieu of the amount; or

(c) by any combination of clauses (a) and (b);

as the spouses may agree or, in the absence of agreement, as the court upon the application of either spouse under this Act may order, taking into account the effect of any interim order made under section 18.1.

17 The amount shown by an accounting under section 15 to be payable by one spouse or common-law partner to the other may be satisfied

(a) by payment of the amount in a lump sum or by instalments; or

(b) by the transfer, conveyance or delivery of an asset or assets in lieu of the amount; or

(c) by any combination of clauses (a) and (b);

as the spouses or common-law partners may agree or, in the absence of agreement, as the court upon the application of either spouse or common-law partner under this Act may order, taking into account the effect of any interim order made under section 18.1.

18(3) A spouse shall at the time of making an application under this Part file with the court a sworn statement disclosing all assets and liabilities of that spouse whether or not they are shareable under this Act and a valuation thereof and shall serve the statement upon the respondent.

18(3) A spouse or common-law partner shall at the time of making an application under this Part file with the court a sworn statement disclosing all assets and liabilities of that spouse or common-law partner whether or not they are shareable under this Act and a valuation thereof and shall serve the statement upon the respondent.

18(4) The respondent shall within 14 days of being served with a statement under subsection (3), or within such further period as the spouses may agree to or a judge on application may allow, file and serve on the applicant a sworn statement disclosing all the respondent's assets and liabilities whether or not they are shareable under this Act and a valuation thereof.

18(4) The respondent shall within 14 days of being served with a statement under subsection (3), or within such further period as the spouses or common-law partners may agree to or a judge on application may allow, file and serve on the applicant a sworn statement disclosing all the respondent's assets and liabilities whether or not they are shareable under this Act and a valuation thereof.

19(1) Subject to subsection (3), no application for an accounting and equalization of assets under this Act may be made after 60 days from the day a decree absolute of divorce is granted in respect of the marriage, or 60 days from the day on which the divorce takes effect.

19(1) Subject to subsection (3), no application for an accounting and equalization of assets under this Act may be made after 60 days from the day a decree absolute of divorce is granted in respect of the marriage, or 60 days from the day on which the divorce takes effect, or one year after the common-law partners cease cohabiting.

20(1) Where under section 18 the court makes an order or gives judgment against a spouse for the payment of money or the transfer, conveyance or delivery of an asset and the court is satisfied that immediate compliance with the order or judgment will work a hardship upon the spouse or is otherwise inexpedient, the court may order that the payment be made by instalments, with or without interest, or may otherwise allow the spouse such time, with or without interest, in which to comply with the order or judgment as the court deems reasonable and may make such further orders as it thinks fit to secure the payment.

20(1) Where under section 18 the court makes an order or gives judgment against a spouse or common-law partner for the payment of money or the transfer, conveyance or delivery of an asset and the court is satisfied that immediate compliance with the order or judgment will work a hardship upon the spouse or common-law partner or is otherwise inexpedient, the court may order that the payment be made by instalments, with or without interest, or may otherwise allow the spouse or common-law partner such time, with or without interest, in which to comply with the order or judgment as the court deems reasonable and may make such further orders as it thinks fit to secure the payment.

20(2) Where under section 18 the court makes an order or gives judgment against a spouse for the payment of money, the court may further order that a specified asset or specified assets of the spouse be sold and that the payment be made out of the proceeds of sale.

20(2) Where under section 18 the court makes an order or gives judgment against a spouse or common-law partner for the payment of money, the court may further order that a specified asset or specified assets of the spouse or common-law partner be sold and that the payment be made out of the proceeds of sale.

20(3) On making an order for one spouse to pay an amount under section 17 or on application the court, if satisfied that it is equitable under the circumstances, may order that spouse to pay interest on all or a portion of the amount at a rate fixed by the court and calculated from a date which is not earlier than the valuation date established under section 16.

20(3) On making an order for one spouse or common-law partner to pay an amount under section 17 or on application the court, if satisfied that it is equitable under the circumstances, may order that spouse or common-law partner to pay interest on all or a portion of the amount at a rate fixed by the court and calculated from a date which is not earlier than the valuation date established under section 16.

21(1) Upon an application to the court under section 18 alleging any of the grounds authorized under subsection (2), the court, for the purpose of preserving the assets of a spouse.

(a) may make a receiving order against all or any of the assets; or

(b) may make an order directing the spouse not to part with the possession of and to preserve the assets or any of them; or

(c) where the application is made in the course of a pending action or proceeding under section 18 and any of the assets is in the form of a title to or an interest in land, may, notwithstanding that the title or interest is not being brought in question in the action or proceeding within the meaning of subsection 85(1) of The Queen's Bench Act, make an order for the issue of a certificate of lis pendens in respect of the title or interest; or

(d) may make such other order as it thinks fit.

21(1) Upon an application to the court under section 18 alleging any of the grounds authorized under subsection (2), the court, for the purpose of preserving the assets of a spouse or common-law partner.

(a) may make a receiving order against all or any of the assets; or

(b) may make an order directing the spouse or common-law partner not to part with the possession of and to preserve the assets or any of them; or

(c) where the application is made in the course of a pending action or proceeding under section 18 and any of the assets is in the form of a title to or an interest in land, may, notwithstanding that the title or interest is not being brought in question in the action or proceeding within the meaning of subsection 85(1) of The Queen's Bench Act, make an order for the issue of a certificate of lis pendens in respect of the title or interest; or

(d) may make such other order as it thinks fit.

21(2) An order under subsection (1) may be made by the court upon any ground alleged against a spouse that the court deems sufficient including, without restricting the generality of the foregoing, the ground

(a) that the spouse has committed or is about to commit an act amounting to dissipation; or

(b) that the spouse is about to abscond with assets.

21(2) An order under subsection (1) may be made by the court upon any ground alleged against a spouse or common-law partner that the court deems sufficient including, without restricting the generality of the foregoing, the ground

(a) that the spouse or common-law partner has committed or is about to commit an act amounting to dissipation; or

(b) that the spouse or common-law partner is about to abscond with assets.

22 In any proceeding under section 18, the spouse claiming that this Act or a provision thereof does not apply to an asset has the onus of so proving.

22 In any proceeding under section 18, the spouse or common-law partner claiming that this Act or a provision thereof does not apply to an asset has the onus of so proving.

23 In any proceeding under section 18, the onus of proof that a spouse has committed an act amounting to dissipation is upon the spouse alleging it.

Onus of proof in dissipation proceeding

23 In any proceeding under section 18, the onus of proof that a spouse or common-law partner has committed an act amounting to dissipation is upon the spouse or common-law partner alleging it.

25 The provisions of this Part relating to an accounting and equalization of assets on the death of a spouse apply in respect of spouses or parties described in subsections 2(1) to (3) immediately before the death of one of the spouses, but only where the death occurs on or after the day this Part comes into force.

25(1) The provisions of this Part relating to an accounting and equalization of assets on the death of a spouse apply in respect of spouses or parties described in subsections 2(1) to (3) immediately before the death of one of the spouses, but only where the death occurs on or after the day this Part comes into force.

25(2) The provisions of this Part relating to an accounting and equalization of assets on the death of a common-law partner apply in respect of common-law partners described in subsection 2(1) immediately before the death of one of the common-law partners, but only where the death occurs on or after the day this section comes into force.

26 Subject to this Part, Parts I to III apply with necessary modifications in respect of an accounting and equalization of assets after the death of a spouse.

26 Subject to this Part, Parts I to III apply with necessary modifications in respect of an accounting and equalization of assets after the death of a spouse or common-law partner.

27(1) Subject to subsections (2) and (3), this Part does not apply in respect of spouses who, before one of them dies, divide their assets under a spousal agreement or this Act.

27(1) Subject to subsections (2) and (3), this Part does not apply in respect of spouses or common-law partners who, before one of them dies, divide their assets under a spousal or cohabitation agreement or this Act.

27(2) Where spouses resume cohabitation after a division of assets under Part III or a spousal agreement and one of them dies, the surviving spouse has, subject to this Act, the right to an accounting and equalization of assets acquired by the spouses during the period of resumed cohabitation, whether or not the spouses are cohabiting at the time the spouse dies.

27(2) Where spouses or common-law partners resume cohabitation after a division of assets under Part III or a spousal agreement and one of them dies, the surviving spouse or common-law partner has, subject to this Act, the right to an accounting and equalization of assets acquired by the spouses or common-law partners during the period of resumed cohabitation, whether or not the spouses or common-law partners are cohabiting at the time the spouse or common-law partner dies.

27(3) Notwithstanding section 5, where spouses enter into a spousal agreement before this Part comes into force and one of them dies after this Part comes into force, the surviving spouse has, subject to this Act, the right to an accounting and equalization of assets under this Part, unless the surviving spouse specifically waived or released his or her rights under The Dower Act or this Part in the spousal agreement.

27(3) Notwithstanding section 5, where spouses or common-law partners enter into a spousal or cohabitation agreement before this Part comes into force and one of them dies after this Part comes into force, the surviving spouse or common-law partner has, subject to this Act, the right to an accounting and equalization of assets under this Part, unless the surviving spouse or common-law partner specifically waived or released his or her rights under The Dower Act or this Part in the spousal or cohabitation agreement.

28(1) Subject to this Part, a surviving spouse may make an application under this Part for an accounting and equalization of assets, but the personal representative of a deceased spouse may not make such an application.

28(1) Subject to this Part, a surviving spouse or common-law partner may make an application under this Part for an accounting and equalization of assets, but the personal representative of a deceased spouse or common-law partner may not make such an application.

28(2) Where either spouse makes application for an accounting and equalization of assets under this Act and one or both of the spouses die before the accounting and equalization of assets is completed, the application may be continued by the surviving spouse or the personal representative of the estate of a spouse who dies.

28(2) Where either spouse or common-law partner makes application for an accounting and equalization of assets under this Act and one or both of the spouses or common-law partners die before the accounting and equalization of assets is completed, the application may be continued by the surviving spouse or common-law partner or the personal representative of the estate of a spouse or common-law partner who dies.

29(1) Subject to subsection (2), a surviving spouse may not make application for an accounting and equalization of assets under this Part in respect of the estate of the deceased spouse after six months from the grant of letters probate of the will or of letters of administration.

29(1) Subject to subsection (2), a surviving spouse or common-law partner may not make application for an accounting and equalization of assets under this Part in respect of the estate of the deceased spouse or common-law partner after six months from the grant of letters probate of the will or of letters of administration.

29(2) The court may, upon application by the surviving spouse, extend the limitation period referred to in subsection (1) by such time as it considers appropriate in respect of the portion of the estate remaining undistributed at the date notice of the application for an extension of time is served on the personal representative, if the court is satisfied that the surviving spouse failed to make application for an accounting and equalization of assets within the limitation period for any of the following reasons:

(a) the surviving spouse did not know of the death of the other spouse until after the limitation period expires;

(b) the personal representative of the estate of the deceased spouse did not serve notice on the surviving spouse in accordance with section 31;

(c) circumstances occur that are beyond the control of the surviving spouse;

d) after the limitation period expired, assets are discovered that are or might be subject to equalization under this Act.

29(2) The court may, upon application by the surviving spouse or common-law partner, extend the limitation period referred to in subsection (1) by such time as it considers appropriate in respect of the portion of the estate remaining undistributed at the date notice of the application for an extension of time is served on the personal representative, if the court is satisfied that the surviving spouse or common-law partner failed to make application for an accounting and equalization of assets within the limitation period for any of the following reasons:

(a) the surviving spouse or common-law partner did not know of the death of the other spouse or common-law partner until after the limitation period expires;

(b) the personal representative of the estate of the deceased spouse or common-law partner did not serve notice on the surviving spouse or common-law partner in accordance with section 31;

(c) circumstances occur that are beyond the control of the surviving spouse or common-law partner;

d) after the limitation period expired, assets are discovered that are or might be subject to equalization under this Act.

30 A surviving spouse may make application to the court for an order directing a person who holds an asset of the deceased spouse referred to in subsection 35(1) to suspend the payment or transfer of the asset to a person other than the surviving spouse for such time and to such extent as the court directs, and the court may make such an order where it is satisfied that the estate of the deceased spouse might not be sufficient to pay the amount payable to the surviving spouse on an equalization of assets under this Part.

30 A surviving spouse or common-law partner may make application to the court for an order directing a person who holds an asset of the deceased spouse or common-law partner referred to in subsection 35(1) to suspend the payment or transfer of the asset to a person other than the surviving spouse or common-law partner for such time and to such extent as the court directs, and the court may make such an order where it is satisfied that the estate of the deceased spouse or common-law partner might not be sufficient to pay the amount payable to the surviving spouse or common-law partner on an equalization of assets under this Part.

31 Except where the surviving spouse has made or is continuing an application for an accounting and equalization of assets under this Part, the personal representative of a deceased spouse shall within one month after the grant of letters probate or letters of administration serve the surviving spouse, in accordance with the rules of the court, with a notice in the following form:

To (name of surviving spouse)

In the matter of the estate of (name of deceased spouse).

TAKE NOTICE that as the surviving spouse of (name of deceased spouse) you could have rights under The Marital Property Act to an accounting and equalization of assets. If you wish to make an application under that Act, you must do so within six months from (date), the day on which (letters probate or letters of administration) were granted. That is, you must make application before (date), unless you apply to the court for and are granted an extension of time. You should consult a lawyer with respect to your rights since The Marital Property Act could, in some circumstances, entitle you to a greater share of your spouse's estate than you are otherwise entitled to, whether or not your spouse left a will.

31 Except where the surviving spouse or common-law partner has made or is continuing an application for an accounting and equalization of assets under this Part, the personal representative of a deceased spouse or common-law partner shall within one month after the grant of letters probate or letters of administration serve the surviving spouse, in accordance with the rules of the court, with a notice in the following form:

To (name of surviving spouse or common-law partner)

In the matter of the estate of (name of deceased spouse or common-law partner).

TAKE NOTICE that as the surviving spouse or common-law partner of (name of deceased spouse or common-law partner) you could have rights under The Family Property Act to an accounting and equalization of assets. If you wish to make an application under that Act, you must do so within six months from (date), the day on which (letters probate or letters of administration) were granted. That is, you must make application before (date), unless you apply to the court for and are granted an extension of time. You should consult a lawyer with respect to your rights since The Family Property Act could, in some circumstances, entitle you to a

greater share of your spouse's or common-law partner's estate than you are otherwise entitled to, whether or not your spouse or common-law partner left a will.

32(1) The personal representative of the estate of a deceased spouse shall not proceed with the distribution of the estate until

(a) subject to subsection (3), the surviving spouse consents in writing to the proposed distribution;

(b) the time within which the surviving spouse may make application for an accounting and equalization of assets under this Part has expired and no such application has been made within that time; or

(c) an application made or continued under this Part for an accounting and an equalization of assets is disposed of.

32(1) The personal representative of the estate of a deceased spouse or common-law partner shall not proceed with the distribution of the estate until

(a) subject to subsection (3), the surviving spouse or common-law partner consents in writing to the proposed distribution;

(b) the time within which the surviving spouse or common-law partner may make application for an accounting and equalization of assets under this Part has expired and no such application has been made within that time; or

(c) an application made or continued under this Part for an accounting and an equalization of assets is disposed of.

32(2) If a personal representative distributes a portion of the estate of a deceased spouse contrary to this section and a payment is ordered by the court to be made out of the estate pursuant to an accounting and equalization of assets, the personal representative is personally liable to the surviving spouse for any loss suffered by the surviving spouse as a result of the distribution.

32(2) If a personal representative distributes a portion of the estate of a deceased spouse or common-law partner contrary to this section and a payment is ordered by the court to be made out of the estate pursuant to an accounting and equalization of assets, the personal representative is personally liable to the surviving spouse or common-law partner for any loss suffered by the surviving spouse or common-law partner as a result of the distribution.

33 A personal representative of a deceased spouse who continues an application for an accounting and equalization of assets under this Part, or a surviving spouse, whether or not he or she makes or continues such an application,

(a) may, within the time set out in or extended under section 29, or while an application under this Part is pending, request the other to provide a sworn statement disclosing the liabilities and assets of the surviving spouse or the estate of the deceased spouse, as the case may be, whether or not the assets are subject to an accounting and equalization under this Part; and

(b) shall, on receiving a request under clause (a), provide the statement to the other person within 14 days after receiving the request.

33 A personal representative of a deceased spouse or common-law partner who continues an application for an accounting and equalization of assets under this Part, or a surviving spouse or common-law partner, whether or not he or she makes or continues such an application,

(a) may, within the time set out in or extended under section 29, or while an application under this Part is pending, request the other to provide a sworn statement disclosing the liabilities and assets of the surviving spouse or common-law partner or the estate of the deceased spouse or common-law partner, as the case may be, whether or not the assets are subject to an accounting and equalization under this Part; and

(b) shall, on receiving a request under clause (a), provide the statement to the other person within 14 days after receiving the request.

34 In an accounting after the death of a spouse, the closing date for the inclusion of assets and liabilities in the accounting, and the valuation date for each asset and liability is

(a) where the spouses were cohabiting with each other on the day of the death, the date of death; or

(b) where the spouses were not cohabiting with each other on the day of the death, the date on which the spouses last cohabited with each other.

34 In an accounting after the death of a spouse or common-law partner, the closing date for the inclusion of assets and liabilities in the accounting, and the valuation date for each asset and liability is

(a) where the spouses or common-law partners were cohabiting with each other on the day of the death, the date of death; or

(b) where the spouses or common-law partners were not cohabiting with each other on the day of the death, the date on which the spouses or common-law partners last cohabited with each other.

35(1) Where spouses were cohabiting with each other on the day one of them died, the value of each of the following shall be included, together with assets subject to an accounting under Part II, as an asset of the deceased spouse for the purpose of an accounting and equalization of assets under this Part, to the extent that the deceased spouse did not receive adequate consideration in respect of the asset:

(a) a gift mortis causa by the deceased spouse to a person other than the surviving spouse;

(b) subject to subsection (3), property that, at the time of the death of the deceased spouse, was held by the deceased spouse and a person other than the surviving spouse, with a right of survivorship;

(c) a retirement savings plan, retirement income fund or annuity, of a pension, retirement, welfare or profit-sharing fund, trust, scheme, contract or arrangement for the benefit of employees or former employees, payable to a person other than the surviving spouse on the death of the deceased spouse;

(d) where a life insurance policy owned by the deceased spouse is payable to a person other than the surviving spouse, the cash surrender value of the life insurance policy immediately before the death of the deceased spouse;

(e) the proceeds of a life insurance policy payable to the estate;

(f) any other payment to the estate by reason of the death of the deceased spouse.

35(1) Where spouses or common-law partners were cohabiting with each other on the day one of them died, the value of each of the following shall be included, together with assets subject to an accounting under Part II, as an asset of the deceased spouse or common-law partner for the purpose of an accounting and equalization of assets under this Part, to the extent that the deceased spouse or common-law partner did not receive adequate consideration in respect of the asset:

(a) a gift mortis causa by the deceased spouse or common-law partner to a person other than the surviving spouse or common-law partner;

(b) subject to subsection (3), property that, at the time of the death of the deceased spouse or common-law partner, was held by the deceased spouse or common-law partner and a person other than the surviving spouse or common-law partner, with a right of survivorship;

(c) a retirement savings plan, retirement income fund or annuity, of a pension, retirement, welfare or profit-sharing fund, trust, scheme, contract or arrangement for the benefit of employees or former employees, payable to a person other than the surviving spouse or common-law partner on the death of the deceased spouse or common-law partner;

(d) where a life insurance policy owned by the deceased spouse or common-law partner is payable to a person other than the surviving spouse or common-law partner, the cash surrender value of the life insurance policy immediately before the death of the deceased spouse or common-law partner;

(e) the proceeds of a life insurance policy payable to the estate;

(f) any other payment to the estate by reason of the death of the deceased spouse or common-law partner.

35(2) The proceeds of a life insurance policy payable on the death of a spouse are not an asset of the deceased spouse for the purpose of an accounting and equalization of assets under this Part where the life insurance policy

(a) is for a purpose referred to in subsection 1(3) (insurance for business purposes);

(b) is in compliance with a court order made under the Divorce Act (Canada) or clause 10(1)(i) of The Family Maintenance Act; or

(c) is in compliance with a maintenance agreement between the deceased spouse and a person other than the surviving spouse.

35(2) The proceeds of a life insurance policy payable on the death of a spouse or common-law partner are not an asset of the deceased spouse or common-law partner for the purpose of an accounting and equalization of assets under this Part where the life insurance policy

(a) is for a purpose referred to in subsection 1(3) (insurance for business purposes);

(b) is in compliance with a court order made under the Divorce Act (Canada) or clause 10(1)(i) of The Family Maintenance Act; or

(c) is in compliance with a maintenance agreement between the deceased spouse or common-law partner and a person other than the surviving spouse or common-law partner.

35(3) Where a deceased spouse at the time of his or her death held real property, or funds in a bank account, jointly with a person other than the surviving spouse, the real property or funds shall be included in the inventory of assets of the deceased spouse

(a) in the case of funds in a bank account, to the extent that the funds were the property of the deceased spouse immediately before the funds were deposited; and

(b) in the case of real property, to the extent of the ratio of the contribution of the deceased spouse to the contribution of other parties, multiplied by the fair market value of the property on the day the spouse died.

35(3) Where a deceased spouse or common-law partner at the time of his or her death held real property, or funds in a bank account, jointly with a person other than the surviving spouse or common-law partner, the real property or funds shall be included in the inventory of assets of the deceased spouse or common-law partner

(a) in the case of funds in a bank account, to the extent that the funds were the property of the deceased spouse or common-law partner immediately before the funds were deposited; and

(b) in the case of real property, to the extent of the ratio of the contribution of the deceased spouse or common-law partner to the contribution of other parties, multiplied by the fair market value of the property on the day the spouse or common-law partner died.

35(4) In a proceeding under this Part respecting an accounting and equalization of assets after the death of a spouse, the onus of proving the extent of the interest of the deceased spouse in a bank account or real property held jointly with a person other than the surviving spouse is on the surviving spouse.

35(4) In a proceeding under this Part respecting an accounting and equalization of assets after the death of a spouse or common-law partner, the onus of proving the extent of the interest of the deceased spouse or common-law partner in a bank account or real property held jointly with a person other than the surviving spouse or common-law partner is on the surviving spouse or common-law partner.

36 Notwithstanding subsection 11(1), the funeral and testamentary expenses of the estate of the deceased spouse shall not be included in the calculation of an equalization payment under this Part.

36 Notwithstanding subsection 11(1), the funeral and testamentary expenses of the estate of the deceased spouse or common-law partner shall not be included in the calculation of an equalization payment under this Part.

37 The following assets of a surviving spouse are not subject to an accounting for the purpose of an equalization of assets under this Part:

(a) an asset owned jointly with the deceased spouse where the surviving spouse has a right of survivorship;

(b) life insurance payable on the death of the other spouse;

(c) a retirement savings plan, retirement income fund or annuity, or a pension, retirement, welfare or profit-sharing fund, trust, scheme, contract or arrangement for the benefit of employees or former employees payable to the surviving spouse on the death of the other spouse.

37 The following assets of a surviving spouse or common-law partner are not subject to an accounting for the purpose of an equalization of assets under this Part:

(a) an asset owned jointly with the deceased spouse or common-law partner where the surviving spouse or common-law partner has a right of survivorship;

(b) life insurance payable on the death of the other spouse or common-law partner;

(c) a retirement savings plan, retirement income fund or annuity, or a pension, retirement, welfare or profit-sharing fund, trust, scheme, contract or arrangement for the benefit of employees or former employees payable to the surviving spouse or common-law partner on the death of the other spouse or common-law partner.

38 Where a surviving spouse is entitled to a share of the estate of the deceased spouse under The Intestate Succession Act, the amount of an equalization payment payable to the surviving spouse from the estate under this Act shall be reduced by the amount of the entitlement of the surviving spouse under The Intestate Succession Act.

38 Where a surviving spouse or common-law partner is entitled to a share of the estate of the deceased spouse or common-law partner under The Intestate Succession Act, the amount of an equalization payment payable to the surviving spouse or common-law partner from the estate under this Act shall be reduced by the amount of the entitlement of the surviving spouse or common-law partner under The Intestate Succession Act.

39 Subject to section 43, the value of a bequest, gift or devise to which a surviving spouse is entitled under the will of the deceased spouse, including any bequest, gift or devise renounced by the surviving spouse, and any gift mortis causa made to the surviving spouse by the deceased spouse, shall be deducted from any amount payable to the surviving spouse from the estate of the deceased spouse under this Act.

39 Subject to section 43, the value of a bequest, gift or devise to which a surviving spouse or common-law partner is entitled under the will of the deceased spouse or common-law partner, including any bequest, gift or devise renounced by the surviving spouse or common-law partner, and any gift mortis causa made to the surviving spouse or common-law partner by the deceased spouse or common-law partner, shall be deducted from any amount payable to the surviving spouse or common-law partner from the estate of the deceased spouse or common-law partner under this Act.

41(1) Where a surviving spouse is entitled under this Act to an equalization payment from the estate of a deceased spouse, the equalization payment is deemed to be a debt of the deceased spouse, is payable after the other liabilities of the estate, and has priority over

(a) a bequest, gift or devise contained in a will of the deceased spouse;

(b) an obligation to pay maintenance under a maintenance agreement or an order of a court binding the estate of the deceased spouse; and

(c) an order of a court under The Dependants Relief Act.

41(1) Where a surviving spouse or common-law partner is entitled under this Act to an equalization payment from the estate of a deceased spouse or common-law partner, the equalization payment is deemed to be a debt of the deceased spouse or common-law partner, is payable after the other liabilities of the estate, and has priority over

(a) a bequest, gift or devise contained in a will of the deceased spouse or common-law partner;

(b) an obligation to pay maintenance under a maintenance agreement or an order of a court binding the estate of the deceased spouse or common-law partner; and

(c) an order of a court under The Dependants Relief Act.

41(2) An equalization payment under this Part shall be paid from the interests of the persons, other than the surviving spouse, who are beneficiaries of the estate, in proportion to the value of their respective interests in the estate, unless the will of the deceased spouse specifically provides for the manner in which the interests of the beneficiaries are to be used to satisfy an equalization payment, in which case the provisions of the will apply.

41(2) An equalization payment under this Part shall be paid from the interests of the persons, other than the surviving spouse or common-law partner, who are beneficiaries of the estate, in proportion to the value of their respective interests in the estate, unless the will of the deceased spouse or common-law partner specifically provides for the manner in which the interests of the beneficiaries are to be used to satisfy an equalization payment,in which case the provisions of the will apply.

41(3) Where the amounts payable under subsection (2) are not sufficient to satisfy the amount of an equalization payment under this Part, the deficit shall be paid by the persons entitled to the assets referred to in subsection 35(1), in proportion to and to the extent of the value of their respective interests in those assets less the value of any consideration provided by those persons respectively to or on behalf of the deceased spouse.

41(3) Where the amounts payable under subsection (2) are not sufficient to satisfy the amount of an equalization payment under this Part, the deficit shall be paid by the persons entitled to the assets referred to in subsection 35(1), in proportion to and to the extent of the value of their respective interests in those assets less the value of any consideration provided by those persons respectively to or on behalf of the deceased spouse or common-law partner.

41(4) For the purpose of subsection (2), the court may on application vary the terms of a trust, that is established under the terms of the will of a deceased spouse and that is an asset of the deceased spouse for the purpose of an accounting and equalization of assets under this Part, in order to satisfy the share of the surviving spouse on an equalization of assets under this Part, and section 59 of The Trustee Act applies with necessary modifications to any such variation or proposed variation.

41(4) For the purpose of subsection (2), the court may on application vary the terms of a trust, that is established under the terms of the will of a deceased spouse or common-law partner and that is an asset of the deceased spouse or common-law partner for the purpose of an accounting and equalization of assets under this Part, in order to satisfy the share of the surviving spouse or common-law partner on an equalization of assets under this Part, and section 59 of The Trustee Act applies with necessary modifications to any such variation or proposed variation.

41(5) The amount that a beneficiary or a person entitled to an asset of a deceased spouse is required to pay to satisfy an equalization payment payable to a surviving spouse may be made

(a) by payment of the amount in a lump sum or by instalments;

(b) by the transfer, conveyance or delivery of an asset or assets in lieu of the amount; or

(c) by a combination of clauses (a) and (b);

as may be agreed or, in the absence of agreement, as the court may order upon the application of the surviving spouse, beneficiary or person.

41(5) The amount that a beneficiary or a person entitled to an asset of a deceased spouse or common-law partner is required to pay to satisfy an equalization payment payable to a surviving spouse or common-law partner may be made

(a) by payment of the amount in a lump sum or by instalments;

(b) by the transfer, conveyance or delivery of an asset or assets in lieu of the amount; or

(c) by a combination of clauses (a) and (b);

as may be agreed or, in the absence of agreement, as the court may order upon the application of the surviving spouse or common-law partner, beneficiary or person.

42 An application to the court under subsection 18(1) may be made by the surviving spouse, the personal representative of the estate of the deceased spouse, or a person who is or might be a beneficiary of the estate.

42 An application to the court under subsection 18(1) may be made by the surviving spouse or common-law partner, the personal representative of the estate of the deceased spouse or common-law partner, or a person who is or might be a beneficiary of the estate.

43 Nothing in this Act affects the right of a surviving spouse to take under the will of the deceased spouse and not under this Act.

43 Nothing in this Act affects the right of a surviving spouse or common-law partner to take under the will of the deceased spouse or common-law partner and not under this Act.