“Therefore, a court must first apply trust principles to determine ownership before turning to the exclusions listed in s. 4(2) [of the Family Law Act]. This is supported by the language of s. 4(2), which provides: “The value of the following property that a spouse owns on the valuation date does not form part of the spouse’s net family property . . .” (emphasis added). A spouse cannot exclude property that is beneficially owned by someone else.
It must be stated that, in the vast majority of cases, any unjust enrichment that arises as the result of a marriage will be fully addressed through the operation of the equalization provisions under the Family Law Act; the spouse who legally owns an asset will ordinarily share half its value with the other spouse as a result of the equalization provisions under the Act. However, a fair and contextual reading of the equalization and net family property provisions of the Family Law Act ensures that married spouses are not deprived of equitable remedies they would otherwise have available to them because, as noted above, ownership issues — equitable or otherwise — are to be determined before the net equalization payment exercise is undertaken.”