Does the fact that funds might be available for retirement make a family asset?

Similarly, the mere fact that funds might be available for retirement does not suffice to make them a family asset. For example, in Todd v. Freeman (2005), 46 B.C.L.R. (4th) 207, 2005 BCCA 519, the wife’s remainder interest in a trust fund was held not to be a family asset, in part because there was no evidence of specific discussions with respect to how finances would be arranged on retirement, and also because the parties had other sources of wealth available to them, including other assets and their substantial earning capacities. As a result, the parties had not arranged their affairs so that the inheritance would provide them with financial security (at para. 48). These facts, combined with certain aspects of the trust that restricted the wife’s use of the funds while her mother was alive, meant that the trust was not a family asset.

Even specific plans to use the funds for a family purpose may not suffice to make an asset ordinarily used for a family purpose. In Crocker v. Crocker (1993), 44 A.C.W.S. (3d) 126 (B.C.S.C.), proceeds of sale from an inherited apartment received approximately six months before the parties separated were held not to be a family asset, even though the trial judge concluded that the intention of the parties was probably to use the proceeds of the sale of the apartment to buy a house for themselves. Sinclair-Prowse J. held that “an intended or probable future use does not convert an asset into a family asset” (at para. 20).