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Murdoch v. Murdoch and family property law in Canada

July 7, 2006

Disputes about who owns the matrimonial home or other property acquired during marriage are essentially “private” fights between husband and wife. Hundreds, if not thousands, of such disputes pass through lawyers’ offices and courts at any given time. The outcome of these cases has a highly significant impact on the individuals involved and their families. Often, though, the cases do not involve what could be called a significant new point of law, or fundamental public issue, however moving or tragic the individual circumstances.

However, certain cases may indeed become the catalyst for significant and far-reaching developments in the law and law reform. So, although we cannot mention here in any detail the legal action taken by the thousands of Canadian women involved each year in family law cases, we can present one typical case. A ranch woman from Alberta, Irene Murdoch was involved in a claim to share in the family ranch that she and her husband had built up. The failure of that claim was a personal disappointment to her and became the inspiration for a major public movement for property law reform. Although scholars and law reform officials had been studying family property questions for some years before Murdoch’s case gained public attention, and some reforms had already been made, the decision of the Supreme Court of Canada in her case inspired many women’s groups across the country to take up the legal and political fight.

Murdoch was the wife of an Alberta rancher. On the breakdown of her marriage in 1968, Murdoch sought a share in the ranch property held solely in her husband’s name. The ranch consisted of three quarter-sections of land, amounting to 480 acres in all. Her claim was based on her contribution to the building up of assets and the running of the ranch during 25 years of marriage.

At the trial, Murdoch answered the following questions concerning her activities in the ranch business:

Q. Could you tell the court, as briefly as you can, the nature of the work you did?

A. Haying, raking, swathing, moving, driving trucks and tractors and teams, quietening horses, taking cattle back and forth to the reserve, dehorning, vaccinating, branding, anything that was to be done. I worked outside with him, just as a man would, anything that was to be done.

Q. Was your husband away from these properties?

A. yes, for five months every year.

In spite of this enormous contribution to the running of the ranch, the trial judge found that Murdoch had done the work of “any ranch wife.” This “routine” work did not justify a share in the property.

In 1973 the Supreme Court of Canada heard the case on an appeal from the Alberta courts. It denied her a share on the grounds that her contribution was no more than that of any other wife and that it did not create any interest in the lands.

Murdoch was represented throughout by Ernest Shymka of Calgary who agreed to take on her case on the basis that he would be paid out of the proceeds. He was not paid for his legal services or for disbursements.

The Supreme Court of Canada ordered Murdoch to pay a portion of her husband’s legal costs for the trial, the appeal at the Alberta Court of Appeal, and the appeal to the Supreme Court of Canada. Apparently, however, her husband did not enforce that order.

In 1973, subsequent to the proceedings with respect to the division of family property, Mr. Murdoch petitioned for a divorce. Irene Murdoch counter-petitioned and sought maintenance for herself. In 1974, before his divorce was granted, Mr. Murdoch had transferred the ownership of two quarter-sections of the ranch land to his son and then leased them back from him, in order to put this property beyond the reach of his wife. The Court held that this was not a bona fide transaction and was done to hinder, delay, or defraud his wife’s claim. The Court ordered that the conveyance be set aside.

Mr. Murdoch’s assets were valued at $200,000. The Court ordered that he pay Irene Murdoch a lump sum for maintenance of $65,000 but that no monthly support payments need be made. The lump sum payment was chosen because it severed once and for all the relationship between the two and because it gave her a secure income for life, regardless of the future state of her husband’s finances.

While some law reform activity and study has taken place before the Supreme Court decision in Murdoch, the case triggered a new and intensive round of lobbying across Canada for family law reform. A wave of new statutes was passed in the common law jurisdictions which considerably improved the prior legislation.

province/territory
title of act | date of proclamation
  • British Columbia
    Family Relations Act (R.S.B.C. 1979, c. 121) | March 31, 1979
  • Alberta
    The Matrimonial Property Act (R.S.A. 1980, c. M-9) | January 1, 1979
  • Saskatchewan
    The Matrimonial Property Act (S.S. 1979, c. M-6.1) | January 1, 1980
  • Manitoba
    The Marital Property Act (S.M. 1978, c. 24 (M-45) | October 15, 1978
  • Ontario
    Family Law Reform Act (R.S.O. 1980, c. 152) | March 31, 1978
  • New Brunswick
    Marital Property Act (S.N.B. 1980, c. M-1.1) | January 1, 1981
  • Nova Scotia
    Matrimonial Property Act (S.N.S. 1980, c. 9) | October 1, 1980
  • Prince Edward Island
    Family Law Reform Act (S.P.E.I. 1978, c. 6) | December 31, 1978
  • Newfoundland
    The Matrimonial Property Act (S.N. 1979, c. 32) | July 1, 1980
  • Northwest Territories
    Matrimonial Property Ordinances (sections 1, 2, 27, 28) (R.O.N.W.T. 1974, c. M-7) | July 1, 1974
  • Quebec
    Revision of the family law provisions of the Civil Code of Quebec had been undertaken earlier; family law and matrimonial regimes were reformed in 1969, partnership of acquests was introduced in 1970, paternal authority was abolished in 1977. In 1980, a major reform of family law established the principle of spousal equality in marriage and within the family unit.
  • Yukon
    Matrimonial Property and Family Support Ordinances (O.Y.T. 1979 (2nd), c. 11) | January 1, 1980
source
  • Women and legal action: precedents, resources and strategies for the future, text from the “Family Property Law” section by M ELIZABETH ATCHESON, MARY A EBERTS and BETH SYMES. Footnotes omitted. Her Majesty the Queen in Right of Canada. All rights reserved. Source: Status of Women Canada. ISBN: 0-660-117150. Reproduced with the permission of the Minister of Public Works and Government Services Canada, 2006.

This feature was first published on section15.ca’s predecessor site CoolWomen.

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