Getting rid of your ex’s stuff and the liability of doing so upon relationship breakdown
By Kristin McDonald, Calgary Family Lawyer
Often when individuals are in the midst of a relationship breakdown, or are growing weary of a protracted separation, they can make impulsive decisions about the shared and/or personal property of their ex-partner that is in their possession.
Property of this nature can include furniture and household items, items of significant financial and sentimental value, such as heirlooms, tools, jewelry, sporting equipment, and collectables.
While you may be eager to claim your former partner “abandoned” this property, it is important to note that such a claim is unlikely to protect you from liability in family property matters.
The Alberta Family Property Act sets out the requirements (sections 5 and 5.1) and limitations for family property claims between spouses/former spouses and former Adult Interdependent Partners (“AIPs”; often referred to as “common law”) (sections 6 and 6.1, respectively).
Generally speaking, it is unwise to dispose of any potential family or personal property prior to a settlement agreement or an order of the court has set out the details of property division. If your agreement, order, or judgement is silent on a deadline for the exchange of the property, or you have otherwise been forced to downsize, consider the following prior to moving or disposing of property.
Organize and set the property aside
Taking an inventory of shared property (property acquired by you, your former partner, or jointly during the relationship) and any personal property (acquired prior to the relationship or acquired as a result of gift or inheritance during the relationship) is your best first step. This will allow you to clearly communicate to your former partner, your family lawyer, and the court what the property is and where it is located. Taking pictures of each item to document the condition of the items is also a good idea. Make sure you properly date, label, and organize the pictures. This will save time, money, and grief in the long run, especially if your property matters go to court.
Notifying your former partner of the property in your possession
Write to your ex detailing the items that have been left in your possession and set out which you wish to keep (for shared property only) and those you will make available for them to pick-up. Ask your former partner to remove the property within a reasonable time period (what is reasonable will depend on which stage of the separation you are in and what if any previous discussions regarding property have already taken place) and provide several options for pickup arrangements, access to the home, how/when to reach you to make arrangements, etc. It is also wise to include a sentence inviting your ex to make alternative suggestions if those offered do not work for them.
If you do not get a response from your ex by the date you have requested, it is best to ensure you have the correct and current contact information for them and to send a written reminder with a courtesy extension to the deadline. This sets you up as a reasonable party and clearly sets out your efforts to return the property to your former partner.
Notifying your ex of your intention to move the property
If after a reminder and courtesy deadline extension your former partner has still not planned to pick-up or remove their property, write to your ex partner notifying them of what you intend to do with the property if they do not respond to you or otherwise make arrangements to remove the property. If the items carry financial or sentimental value, it is best to move the property to secure storage. Again, a thorough inventory of the items and their condition prior to and after the move to storage is important to protect yourself from liability. This is wise whether you are moving the items to your garage or to a pay-for-storage facility.
Note: if your former partner has rights to your home or the property where the items where when the relationship broke down, making unilateral decisions to move and/or store the property may have consequences. For example, storage facility fees may be at your sole expense, especially where you do not have clear documentation as to your efforts to have the property otherwise removed or reasonable circumstances necessitating the move to the facility.
Moving the Property to Storage
If you move the items to a storage facility, clearly provide your former partner with the details of the facility, how they can access the storage, any codes or keys required to access the storage, the cost of the storage, and the information required to transfer the storage contract into their name. Keep all receipts from the storage facility as you may be able to claim these costs as part of your family property division. Set a reasonable deadline for them to retrieve the items from storage (again, what is reasonable will vary) and clearly set out what will happen if the property is not picked up by that date. For example, you will cease paying for the storage and release the items to the storage facility as “abandoned” (include documents on the facilities policies in this regard), or you will sell them, or otherwise dispose of them.
Note: if you sell the items, keep detailed records of the sales. You may have to share some or all the proceeds with your ex.
Notifying your former partner of your intent to abandon or dispose of the property
If your ex has not responded to you or otherwise refused to pick up the property, speak to your family lawyer before selling, abandoning, or otherwise disposing of shared property or your former partner’s personal property. While limitations dates are important, ongoing negotiations and settlement processes are also key in understanding your liability and the potential consequences in your specific circumstances. If you decide to proceed with the disposal, write to your former spouse confirming the date and details of the disposal as well as all of your previous attempts to return the items to them.
Getting rid of your ex’s belongings can be more complicated than one would think. If you’re unsure about what to do and need some assistance to properly dispose of unwanted items, the Calgary and Vancouver family lawyers and divorce mediators at Crossroads Law are here to help. Book your free 20-minute consult today to learn more.