Introduction

Since the enactment of the Family Law Act (“FLA”), Courts have struggled with determining, firstly, if and when the interest of a spouse in a discretionary trust qualifies as “property” as defined in the FLA for purposes of equalization of net family property (“NFP”) and secondly, how that property interest is valued.

Family law legislation varies from province to province, but it has been difficult to find any significant body of law in Canada addressing how to deal with interests in trusts. Other jurisdictions such as the U.K., Australia and New Zealand have extensive jurisprudence on the issue and legislation that addresses the accountability of a spouse for a trust interest, both as a beneficiary and in terms of the bundle of rights that are reserved, whether as a Trustee, as a protector or as holder of a power to appoint.

Estate planners need to know when the rights reserved will result in the value of the trust property being included in a spouse’s NFP under the FLA.

Trust Interests as Property

In Ontario, the problem arises from the remedial nature of the legislation and the very broad definition of “property.” Subsection 4(1) of the FLA defines “property”, in part, as follows:

“property” means any interest, present or future, vested or contingent, in real or personal property and includes,

  1. property over which a spouse has, alone or in conjunction with another person, a power of appointment exercisable in favour of himself or herself, and
  2. property disposed of by a spouse but over which the spouse has, alone or in conjunction with another person, a power to revoke the disposition or a power to consume or dispose of the property.

The first part of the definition includes the interest of a beneficiary under a Trust, but paragraphs (a) and (b) relate not to the rights of a beneficiary, but rather to the bundle of rights by which a spouse has the power to control the disposition or consumption of the trust property, whether as a Trustee, protector or holder of a power to appoint.

Trust practitioners believe the definition is overly broad for several reasons.[1] There is no doubt that an individual who has a general power of appointment has a right that is tantamount to ownership of the property.[2] But paragraph 4(1)(a) extends to a power of appointment which a spouse has “alone or in conjunction with another person.” The FLA does not provide any guidance as to the identity of the other person, but presumably the intention was that the other persons might be individuals whose compliance the spouse had either the ability or the expectation to compel.[3]

There does not appear to be any reported Canadian cases which have analysed the identity of the co-trustees or whether or not they are truly independent, although Tremblay v. Tremblay[4] makes conclusions on the issue. U.K. Courts have dealt with the issue of control of the trust property by examining the independence of the other trustees, the likelihood of the other trustees exercising independent authority and any correspondence between the parties such as letters of wishes and patterns of distributions of trust property.[5]

In a number of recent decisions of Commonwealth Supreme Courts and Courts of Appeal,[6] the approach taken by the Courts support a “substance over form” approach to the problem of division of assets in the context of a divorce. The analysis of the Courts involves bringing “a judicious mixture of worldly realism and a respect for the legal affairs of Trusts, the legal duties of Trustees…”[7]

In Charman v. Charman (No. 4),[8] the U.K. Court of Appeal considered whether assets held in an offshore trust over which the husband had de facto control (even though there was a nominally independent Trustee) were “financial resources” of the husband. The Court applied the test of “whether the Trustee would be likely to advance the capital immediately or in the future to the relevant spouse.”[9]

Subsection 4(1)(b) is also directed to a power which the spouse does not possess alone. It is directed to a revocable Trust or to an act which commences with the disposition of property. It is not arguable that a power of revocation held alone should result in the inclusion of the value of the trust property in the NFP of the holder. In Tasarruf Mevduati Sigorta Phonu v. Merryl Lynch Bank and Trust Co. (Cayman) Ltd.,[10] the Privy Council concluded:

The powers of revocation are such that in equity… Mr. Demirel can be regarded as having rights tantamount to ownership… There is no invariable rule that a power is distinct from ownership.

However, subsection 4(1)(b) does not require that such a power be held alone. The particular mischief with paragraph (b) is that it is vague and the word “consume” is not particularly instructive in assessing the use of trust property, as the power to “dispose” of the trust property is clearly included in every trust indenture. Finally, because of the breadth of the definition, neither the legislation nor the jurisprudence appears to have taken into account the fact that if these powers are held in a fiduciary capacity, equitable principles would require that the Trustees, in exercising their discretion or these powers, must act in a fiduciary fashion.

The result of such broad definitions is to permit the value of a trust interest held for the benefit of persons other than the two spouses to be included in the NFP of one spouse. Specifically, paragraph (b) is broad enough to include a power to resettle a Trust made in favour of, for example, the children of the marriage. In that instance, if such property is included in the NFP of one spouse, he or she would be required to make a payment to the other spouse even though neither is a beneficiary of the Trust.[11] Further, despite the fact that the FLA grants significant discretionary powers to the Court, it does not grant to the Court the power to vary Trusts to permit any one or more of the spouses to become a beneficiary of such a Trust.[12]

Tremblay is the latest in a series of Ontario cases that have considered the inclusion of an interest in a trust property in NFP under the FLA.

Practitioners have found the ruling troubling and somewhat opaque. The decision is currently under appeal. It is important for estate planning practitioners to understand how trust assets are likely to be treated in matrimonial litigation when advising clients on the settlement of family trusts, including: the type of powers to be reserved to an individual, the extent to which Trustee duties are limited, and the identity of Co-Trustees. Frequently, clients will wish to retain as much control as is possible, restraining that wish only to avoid income tax rules that restrict benefits if an individual retains rights that would trigger one of the attribution rules. However, the rights retained in Tremblay are not unusual and do not go so far as other more aggressive trust designs. Estate planners will need to examine more carefully the details that will be considered in determining whether or not a specific bundle of rights will qualify as “property” within the meaning of subsection 4(1).

Before reviewing Tremblay, it is helpful to review an Ontario case decided some two years earlier.

Mudronja v. Mudronja[13]

This case was decided only two years earlier than Tremblay but was not cited in that case.

Eddy Mudronja (“Eddy”) had an interest as a beneficiary in the Mudronja Family Trust (the “Trust”). The Trust was settled by Eddy’s father. Eddy was the sole Trustee. The beneficiaries were Eddy’s wife, Marijana, their issue and Mareddy Corporation (“Mareddy”). This corporation was 60% owned by Eddy and 40% by Marijana. The Trust subscribed for non-voting common shares of Jitsu, an operating entity. The Trust also provided that Eddy, as a protector, acting personally and not as a fiduciary, had the power to declare that any person or class of persons (including himself) should be included as a beneficiary. At the date of trial, no additional beneficiaries had been appointed.

Marijana submitted that the entire value of the Trust should be attributable to Eddy’s NFP since he had the power to control the Trust.

Eddy argued that the trust property should be valued as if 35% were owned by the wife (25% plus 10% referable to her 40% share of Mareddy), 25% by Eddy Jr. (a son), 25% by Thomas (another son) and 15% by himself, as he owned 60% of Mareddy.

This approach would be consistent with the approach taken in Sagl v. Sagl[14] and in Kushnir v. Lowry,[15] in which the interests of all beneficiaries of a discretionary trust were valued at an amount equal to the value of the Trust property divided by the number of discretionary beneficiaries. That approach, however, only deals with the interests of the beneficiaries in the Trust qua beneficiaries according to the first part of the definition of “property.”

Rights Reserved

In addition to his interest as a beneficiary, Eddy also held a bundle of rights that would also have qualified as “property”. In these circumstances, the Court found that the value of the power of appointment was properly owned by Eddy, citing authority for the fact that a general power of appointment is tantamount to ownership:

[91] This conclusion is supported by the following words of Donovan Waters in D. W. M. Waters, M. R. Gillen and L. D. Smith, eds., Waters’ Law of Trusts in Canada (4th ed. 2012), at p. 97 stating that:

A general power enables the donee to appoint the property to anyone, including the donee, unless the donee is a fiduciary, and is therefore tantamount to ownership.

The Court also noted that the power held by Eddy was held as a protector and was “not as a fiduciary”:

[92] In Re MacIvor, [1966] 1. O.R. 307-315 (H.C.) the Ontario High Court described the difference between a personal/general power and a fiduciary power by invoking the case of McCarter and Rusznyak v. M.N.R, 22 D.L.R. (2d) 109, [1959] Ex. C.R. 316, [1959] C.T.C. 313. In McCarter the Court stated at para 8 and 9:

In determining whether or not a power is exercisable in a fiduciary capacity, I am of the opinion that, if the power is such that the holder can dispose of the property to himself, to be used as his own without any restriction as to the circumstances in which he may so exercise it, and without responsibility to any other person, the fiduciary feature contemplated by the exception is lacking, and I think this is so whether or not the power is incident to or derived from the holding of a position or office which under other circumstances would by itself imply a fiduciary relationship.

The rights reserved were similar to the extensive rights reserved by Mr. Clayton in the recent decision of Clayton v. Clayton of the Supreme Court of New Zealand.[16] In that case, Mr. Clayton was the Settlor, sole Trustee, discretionary beneficiary and had powers as a “Principal Family Member” and Trustee that were “both broad and free from the normal obligations imposed on fiduciaries in family trust deeds.” The Supreme Court of New Zealand concluded that that particular bundle of rights amounted to a power of appointment and allocated all the value of the trust property to Mr. Clayton.[17]

Interest of a Discretionary Beneficiary

The Court in Mudronja then addressed the issue of whether or not the interest of the object (i.e. a beneficiary) of a discretionary trust is “property” within the meaning of the FLA. It was noted that this had been considered by the Ontario Courts in Sagl and in Kushnir where the Courts accepted the position that the interest of each discretionary beneficiary be valued as if the trust assets were to be divided among the discretionary beneficiaries in equal shares. In a later case, LeVan v. LeVan,[18]a husband’s interest in a discretionary trust was valued at 25% of the trust assets based on his mother’s evidence regarding the parents’ intentions in estate planning to treat their four children equally.

Had the Court accepted this approach to valuation, 50% of the trust property would have been preserved for the Mudronja children and Marijana would have been allocated a higher value for her interest in the trust property than the value attributed to Eddy.[19] However, the Court did not follow that approach, but rather considered a more reasonable and practical approach, taking into consideration Eddy’s control of the Trust. The Court held as follows:

[99] The real question therefore is one of value. What is the value of the Respondent’s [Marijana’s] discretionary interest as an object in the Mudronja Family Trust, in circumstances where she has no status or right to enforce the allocation and distribution of any capital or interest from the assets of the trust? On V-day she had no right or power to either require or prevent the disposition, transfer or encumbrance of the entire trust value, nor does she currently have such a right or power.

[100] In the circumstances of this case the entire discretionary, unfettered power in relation to the distribution and all dealings with the Trust’s assets rest with the applicant. He is her adversary now and was also adverse in interest when the parties separated. I find therefore that the V-day value of the Respondent’s interest in the Trust is nominal. To allocate otherwise would have the effect of artificially increasing her NFP, thereby unfairly and inequitably diluting her equalization entitlement arising from the applicant’s significant business interests. A value of $1.00 is therefore attributed to the Respondent’s interest in the Mudronja Family Trust for purposes of the equalization calculation.

Such an approach echoes the trend in other common law jurisdictions to balance “worldly realism” with the terms of the Trust.[20]

The Court summarized its approach as follows:

[98] Based on the above-noted authorities, and the need to provide for a fair property settlement following marriage breakdown, I find an interest in a discretionary trust is an interest in property for purposes of equalization pursuant to the FLA… Having regard to the numerous and varied methods spouses choose to arrange their financial affairs during marriage, and the need to ensure an equitable result on marriage breakdown, a beneficial interest in a trust is not automatically excluded from a spouse’s net family property merely because it is subject to discretion. The approach needs to be contextual, having regard to the particular circumstances of the parties, their financial situation and the terms of the trust in relation to the marital relationship on V-day.

The Mudronja decision properly separated the two interests in the Trust, being that of a beneficiary and that of a person entitled to control the Trust. In this instance, Eddy had retained extensive rights that amounted to control. If it were necessary to transfer part of the trust property to Marijana in order to satisfy his equalization payment, it would have been a simple matter to do so by allocating assets to Marijana as a beneficiary or by adding Eddy as a beneficiary, encroaching on capital for his benefit and transferring the property to him in satisfaction of his capital interest which could be used to pay the equalization payment to Marijana.

The Mudronja decision is more in keeping with the analysis followed in the U.K. and other Commonwealth jurisdictions.

Tremblay[21]

Facts

Catherine and Jeffrey (“Jeff”) Tremblay met as teenagers in 1991. They married in 1996 and had two children. They separated in 2012.

Both worked hard during their marriage, completed their education and eventually improved their qualifications. Jeff’s father, Michael Tremblay founded a group of companies in which Jeff was employed and served as a senior officer.

In 2009, Jeff’s father implemented an estate freeze, the purpose was to allow growth of 50% of MH Tremblay Holdings Inc. (“MHTH”) to accrue to the benefit of Jeff’s family and 50% to Michael’s family.[22] Two new holding companies and three new Trusts were created namely, MH Tremblay Family Trust No. 2,[23] the Jeffrey Tremblay Family Trust No. 1 (“Trust #1”) and Jeffrey Tremblay Family Trust No. 2 (“Trust #2”). The common shares (growth shares) of MHTH were owned equally by the MH Tremblay Family Trust No. 2 and Trust #1. Despite the fact that various titles were given to Jeff, his father, Michael, retained sole voting control over the corporate entities.

In order to receive dividends from MHTH another company was created, namely Nictor Holdings Inc. (“Nictor”). The dividend income from MHTH would flow through Trust #1 to Nictor, which was a beneficiary of Trust #1. Nictor received the funds tax free as a related corporation. The only shareholder of Nictor was Trust #2. Jeff was the sole director of Nictor and had the sole power to declare dividends.

The beneficiaries of Trust #2 were Jeff, Catherine and their two children. The Trustees were Jeff and his two parents.

At the date of separation, approximately $905,000 was held in Nictor.

The issues in dispute related to, among other things, whether the value of shares in MHTH and Nictor should be included in the husband’s NFP.

The Issues

Part of the difficulty with this case was the summary of the questions posed, which were in part as follows:

  1. a determination of the value of shares in MHTH and Nictor and whether the share value should be included in the NFP; and
  2. a determination of whether Jeff may exclude the share value of Nictor and MHTH from his NFP as having been received by him via gift.

Since Jeff did not own a direct interest in any of the corporate entities, the questions posed were not as precise as they ought to have been, as the issues related to Jeff’s and Catherine’s interests in Trust #2 which owned the shares of Nictor.

In determining whether or not the shares of MHTH would be included in Jeff’s NFP, Phillips J. noted that if funds were held in MHTH, they were “entirely under the control of Michael Tremblay” and concluded that Jeff did not have a property interest in MHTH as defined by section 4 of the FLA.

We note, however, that 50% of the shares of MH Holdings Inc. were owned by Trust #1 and, presumably, there would have been some growth accruing to the common shareholders since the implementation of the estate freeze in 2009. This issue was not addressed at all. It is unclear if the MH Tremblay Trust No. 2, which held the other 50% of the growth shares of MHTH, included Jeff and his family as beneficiaries.

As for Nictor, Phillips J. stated that he accepted the evidence that “Nictor was intended to be a holding company for the Respondent to hold his 50% share of any profits that Michael Tremblay would actually disburse from MH Tremblay Holdings Inc.” and noted that once funds are in Nictor, Jeff as director has “unfettered autonomous discretion with respect to the issuance of dividends.”

He noted that if Jeff caused Nictor to issue dividends, the only recipient would be Trust #2, under which Jeff was both a Trustee and a beneficiary. He then addressed the issue of whether Jeff’s beneficial interest in Trust #2 constituted “property”:

[27] Traditional trust law principles are clear that a person who is the object of trustee discretion to pay out capital in his favour does not have an existing property interest. From a pure property law viewpoint, he has only what is termed an “expectancy”. He has the right to be considered by the trustees as a recipient under the trust in accordance with its terms and for the trustees to consider this issue acting in good faith in accordance with their fiduciary duty. As such, he has rights which constitute equitable “choses in action”.

Curiously, he did not cite any previous decisions which had already concluded that such an interest did constitute property.

Phillips J. then posed the central question as follows:

[31] In my view, the central question with respect to determining the proprietary character of the Respondent’s discretionary interest in the Jeff Tremblay Family Trust No.2 is his ability to control whether distributions of trust property are made to him for his benefit. His having meaningful control in that regard would undermine the separation as between the entities.

[32] Without trying to set out an exhaustive list, this may involve consideration of the degree to which he as beneficiary can directly or indirectly control the actions of the trustees, which may include consideration of such factors as:

  1. any evidence with respect to the founding intent of the trust. Was the trust designed to effectively allow control by the beneficiary?;
  2. the composition of the trustees, including whether the beneficiary is a trustee;
  3. any requirement, including veto powers, that the beneficiary be part of any trustee decisions;
  4. any history of past trustee actions which demonstrate direct or indirect control by the beneficiary;
  5. any powers of the beneficiary to remove trustees, or to appoint replacement or additional trustees;[24]
  6. the relationship of the beneficiary to the trustees. Are the trustees independent and at arm’s length or are they instead family members or other persons who may not act independently?

Respectfully, these questions seem to confuse the bundle of rights held by Jeff as a Trustee in terms of his ability to control versus his rights as a beneficiary. Specifically, the consideration of “the degree to which he as beneficiary can…control the actions of the trustees” misstates both the facts and the principle of law.

The Court noted that Trust #2 was intended to provide for Jeff’s family and that Jeff had paid himself from the Trust for “family living expenses”.

Power to Remove Trustees

The Court noted that while decisions are to be made by majority, “the Respondent has the sole ability to appoint more Trustees” and he concluded that this represents an ability to control Trust #2:

[36] The Respondent and his two parents, Michael and Heather Tremblay, are the trustees. While decisions in the discharge of the trustees’ fiduciary obligations to the beneficiaries are made by majority rule, the Respondent has the sole ability to appoint more trustees. I find that his ability to name additional trustees is, in a practical sense, an ability to control the trust, at least insofar as an ability to cause the trust funds to come into his hands should he deem that to be in his and the other beneficiaries’ best interests. While I acknowledge that each added trustee would have a personal fiduciary obligation, in my view, practically speaking, the Respondent’s ability to select additional trustees’ amounts to an ability to ensure his wishes about the best interests of his family will ultimately carry the day… It is, after all, the Jeff Tremblay Family Trust. The overwhelming evidence is that the larger Tremblay family is close and has a history of cooperatively sharing their considerable wealth. Even if that close relationship were ever to break down the Respondent has the ability to appoint additional trustees with the result that he could prevail over any dissent.

[38] The degree of control that the Respondent has over the Jeff Tremblay Family Trust No. 2 elevates his expectancy into something more like a certainty. I find that degree of control to amount to the Respondent having a present property interest in the property held in Jeff Tremblay Family Trust No. 2. As such, the holdings of the Jeff Tremblay Family Trust No. 2 are to be considered property in the context of section 4 of the Family Law Act.

Since a majority of the Trustees could make a decision contrary to the wishes of Jeff, the Court seems to have concluded that if the Trustees had done so, Jeff could have exercised his power to appoint additional and more compliant Trustees. Regrettably though, the Court concludes that this power as Trustee changed the character of his discretionary trust interest qua beneficiary from an “expectancy” to a “certainty”.

Generally, with Canadian trusts, it is not usual to have the same extensive type of control that was seen in the Mudronja Family Trust as it would run afoul of subsection 75(2) of the Income Tax Act (Canada). However, it is not unusual for an individual to have the power to replace Trustees, even though the reservation of such a right is not recommended. Nevertheless, the trend in family law decisions appears to be that a power to change or add Trustees is often one of the factors considered by Courts in determining whether a person has de facto control of the trust, such that when combined with the position of such a person as a beneficiary, the interest of that individual is tantamount to the ability to consume the whole of the trust property.

In Kan Lai Kwan[25] the Court reversed the decision of the lower Courts to attribute only two-thirds of the Trust to the “matrimonial pot” on the basis that it would be improper for the Trustees to not reserve one-third of the Trust for the child of the marriage. The Court held that the terms of the Trust and the letter of wishes indicated that the husband held a dominant position in relation to the administration of the Trust and, in making himself protector of the Trust, he had reserved important powers, including the power to remove the Trustee which was intended to have only a passive role as a shareholder.

Exclusion as a Gift

The second issue addressed was whether or not Jeff could exclude the sharevalue of Nictor held by Trust #2 as having been received by him by way of gift received after the date of marriage, pursuant to subsection 4(2) of the FLA.

Again, the posing of the question in such a fashion confuses the matter since Jeff did not receive any shares of Nictor by way of gift. Rather, he received an interest in Trust #2 by way of gift.

The Court adopted the position taken by the Court of Appeal with respect to the law of gift in McNamee v. McNamee[26] which also involved an estate freeze. It was concluded that Michael Tremblay intended that Jeff receive the benefit of Trust #2 as a gift.[27] Phillips J. concluded that Jeff acquired his interest in Trust #2 when it was settled and that there was no evidence suggesting that he paid any consideration to be included in the class of beneficiaries. Therefore, his beneficial interest in Trust #2 came to him by way of gift.

Inclusion of Trust Interest in Wife’s NFP

The Court then addressed the issue of Catherine’s interest in Trust #2 and concluded that she was “as much of an equitable owner” of Trust #2 as was Jeff.

Without addressing whether or not the discretionary interest was to be treated as an equal property interest per the Sagl decision, there is no further discussion of the beneficial interests in the Trust #2 or the valuation of the beneficial interests. This might have been on the basis that each was entitled to an equal interest in Trust #2 which cancelled one another in terms of value. However this approach is in contradiction to Mudronja, which considered that it would be unlikely that the spouse be the object of any beneficial entitlement, particularly where the Trustees were the estranged spouse and his parents.[28]

Exclusion of Trust Interest “Owned”

Phillips J. then addressed the issue of whether or not Jeff “owned” the property in question on the valuation date (the date of separation) and concluded that, “although this interest amounts to property as contemplated by section 4(1) of the FLA, that finding does not equate to a finding of ownership. The proposition that ownership leads to a property interest does not necessarily work in reverse.” He then concludes as follows:

[55] I conclude that the Respondent has not discharged his onus under section 4(3) of the Family Law Act to exclude his interest in the Jeff Tremblay Family Trust No.2 as property owned by him on valuation date acquired by gift.

Subsection 4(3) of the FLA states that the onus of proving a deduction under the definition of NFP or an exclusion under subsection 4(2) is on the person claiming it. “Excluded property” is defined in subsection 4(2) and includes “property, other than a matrimonial home that was acquired by gift or inheritance from a third person after the date of the marriage.” Having concluded that the property in question was the interest in Trust #2 and that the trust interest had been received by way of gift, it made no sense to conclude that the onus had not been discharged.

The distinction between owning property and not owning property is ephemeral and there is no guidance given as to why the existence of a property interest does not amount to ownership of a property interest. There was some prior discussion regarding ownership of trust property being split between a Trustee and a beneficiary with a beneficiary having “what could be called equitable ownership.” However, the reasoning is unclear and estate planners who are relying on the fact that a trust interest acquired after the date of marriage would be excluded from NFP will need to consider very carefully the significance of this case and the meaning of the finding that although the trust “interest” was property, it was not “owned.”

Presumably on the appeal, the Mudronja case will be drawn to the attention of the Court of Appeal and some clarification will be made of the distinction between the existence of a property right and its ownership.