Can a court grant an "if and when" order to divide assets between spouses?
New Brunswick, Canada
The following excerpt is from Miller v. Miller, 2003 NBCA 37 (CanLII):
There is little jurisprudence on the jurisdiction of courts to grant "if and when" orders. In Buttrum v. Buttrum the trial judge outlined the problem as it exists in Ontario at para. 38, p. 266: Technically, the Ontario statute does not allow the court to immediately move to the stage of dividing assets before those assets are valued and included in the net family property calculations. Nevertheless, what an Ontario court can do is to determine whether an item is property under the Family Law Act, assign a value to that asset to be included in net family property, determine the equalization payment, and then conclude that the portion of the equalization payment relating to that asset will be satisfied through the transfer of an asset, through an asset being vested in the other spouse or through one spouse holding an asset in trust for the other spouse. In other words, in Ontario, the "if and when" approach can be used at the point of determining how an equalization payment will be satisfied.
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