Facts: Two days after receiving his dental license, the husband, Mr. Caratun, leaves his wife, Mrs. Caratun, whom he had moved to Canada, leaving her job and life in Israel to financially support her husband so that he could obtain his dentistry license in Canada.
Issue: Is a dental license considered “property” within the Family Law Act, R.S.O. 1990, c. F.3 (“F.L.A”)?
Analysis: On appeal, the judge focused on determining if a dental license could be deemed property as defined in s.4(1) of the F.L.A. There were two aspects the judge considered characterization of a license and the difficulty of valuing a licence in terms of family property.
Characterization of a license The judge concludes that for matrimonial purposes, licenses are not property because of the following:
A license to practice a profession is not a right that is transferable. Also, if you separate before practice has even started, there is nothing to transfer.
It requires the personal efforts of the holder in order to be of any value in the future. The judge determined that work to be performed by a spouse in the future cannot be included as “net family property” to be equalized under s.5 of the F.L.A.
A right to work. The judge determined that all the attainment required in pursuit of professional training to enhance one’s future income should not be treated as property.
Valuation of License
The judge determined that since a license is not property under s.4 of the F.L.A, that “future labour does not constitute anything earned or existing at the valuation date.” Since a license is not property, Mrs. Caratun could not regain her contribution to her husband’s license through a constructive trust or through the unequal division of net family assets provision, found in s.5(6) of the F.L.A.
Decision: Keeping the principle of fairness in mind, the judge taking all factors into consideration, upheld the trial judge’s decision of giving Mrs. Caratun a lump sum payment of $30,000 for her contribution to her husband’s dental license and was able to justify this through support provisions specifically in s.11 of the Divorce Act, R.S.C. 1970, C.d-8 (the “old Divorce Act”).
Ratio: A professional license is not considered property under the F.L.A. It is difficult to come up with a value for a licence as property when the value of the licence is based on the labour of the licensee in the future.