Laura Van Winkle commenced divorce proceedings from Vanilla Ice in 2016. At the time, Van Winkle was seeking sole possession of the matrimonial home, child and spousal support, and legal fees.
Now, Van Winkle is seeking a Court Order to prevent Ice from selling all of the couple’s marital assets in the wake of their impending divorce. Van Winkle claims that Ice is in possession of nearly all of the couple’s marital assets and he is selling them off without her consent.
Depletion of Assets in Ontario Family Law
A principle deeply ingrained in The Family Law Act is that marriage is a “form of partnership”, founded on equal contribution. Specifically, the Act reads, “inherent in the marital relationship is equal contribution, whether financial or otherwise”. As a result of the assumed equal contribution to the marriage is that both spouses are entitled to share equally in the profits of the marriage, or the “net family property”. This is referred to as the equalization of net family property.
But what happens if one spouse begins selling off assets prior to the equalization of net family property?
Under sections 12 and 40 of the Family Law Act, the Court has the jurisdiction to grant a non-depletion order. The object of non-depletion orders with respect to a spouse’s property, is to ensure that the other spouse’s entitlement to the property or to an equalization payment that would satisfied by the sale of the property is protected.
When a spouse applies to the court to have the couple’s net family properties equalized, the spouse may simultaneously seek a non-depletion order. The non-depletion order prohibits the spouse from “frittering away” the asset.
Along with a non-depletion order, a Court also has the authority to make a preservation order. A preservation order allows the court to order that the asset in question be held in safe keeping by the Court until the issue of equalization has been resolved.
As a restraining order is a considerable intrusion on a spouse’s right to deal with his or her property, a spouse requesting such an order is require to bring evidence respecting the likelihood that the property will be dissipated and that he or she is entitled to an equalization payment which value is put in jeopardy by the depletion of the property.