Category: Division of Property, Separation & Divorce

In Ward v. Ward, the wife stayed home to raise the family while the husband earned a high salary. The wife's father gave the wife $200,000 and the husband pressured the wife to use $180,000.00 of that gift to pay down the line of credit on the jointly owned matrimonial home when the marriage was already in trouble. Two months later, the husband left the wife. The Court of Appeal Judge held that the Trial Judge was correct in finding that an equal division of net family property would be unconscionable.

No. In Ontario, when you marry your jewelry remains your own. If the jewelry increases in value during the marriage, upon separation your husband will be entitled to share in the increase in the value of the jewelry. If you have a marriage contract (or a prenuptual agreement), it may outline that if your marriage comes to an end your jewelry is your property and any increase in the value of the jewelry during the marriage will not be shared with your spouse.

There is a specific structure relating to property division when people who are married decide to divorce in Toronto, Ontario: Upon separation and divorce in Toronto, on the request of one of the parties, each spouse calculates his or her ‘net family property.’ This is done by deducting the value of a spouse's net asset position (being assets minus debts) on the date of marriage from the value of the spouse’s net asset position on the date of separation. The spouse with the greater net asset position will be required to pay one half of the difference to the spouse that has the lower net asset position. This payment that is made from one spouse to the other spouse is called an ‘equalization payment.’ There are exceptions to these rules, known as excluded property. Excluded property is property that does not have to be included in a spouse’s net family property in a divorce in Toronto. The value of that item is, therefore, not included in determining the equalization payment. For example, excluded property includes gifts or inheritances that are received during the marriage from a third party, so long as that money was not inextricably co-mingled with the other...

The Family Law Act lays out the limitation periods as follows: (3) An application based on subsection 5 (1) or (2) shall not be brought after the earliest of, (a) Two years after the day the marriage is terminated by divorce or judgment of nullity; (b) Six years after the day the spouses separate and there is no reasonable prospect that they will resume cohabitation; (c) Six months after the first spouse’s death. R.S.O. 1990, c. F.3, s. 7 (3). Cases such as Horner v. Horner, Rae v. Rae, Hart v. Hart, and El Feky v. Tohamy, canvas the issue of a court using its discretion to allow for an extension of the above-cited limitation periods. Generally, the case law suggests that judges will determine whether the applicant, in an application to extend the limitation period, has acted in good faith. As section 2(8) of the Family Law Act explains, (8) The court may, on motion, extend a time prescribed by this Act if it is satisfied that, (a) There are apparent grounds for relief; (b) Relief is unavailable because of delay that has been incurred in good faith; and, (c) No person will suffer substantial prejudice by reason of the delay. Ontario jurisprudence has also...

Depending on where spouses got married, more often than not, they will not be able to contract out of the obligation to split the member-spouse’s Canadian pension upon separation. “Credit splitting” is the term that the Canada Pension Plan refers to when dealing with the splitting of a member’s pension for matrimonial purposes. The section in the Canada Pension Plan that deals with credit splitting of a member’s pension is section 55.2. In section 55.2(2), the Canada Pension Plan explains that spouses may not contract out of the credit splitting of a member’s pension: “Except as provided in subsection (3), where, on or after June 4, 1986, a written agreement between persons subject to a division under section 55 or 55.1 was entered into, or a court order was made, the provisions of that agreement or court order are not binding on the Minister for the purposes of a division of unadjusted pensionable earnings under section 55 or 55.1.” However, the Canada Pension Plan does allow for the parties to contract out of section 55.2 and waive their spouse’s CPP credits in certain circumstance. Section 55.2(3) conveys the circumstances by which a contract stating that the parties waive their rights...

As was evidenced in the case of Canadian Charter of Rights and Freedoms in Nova Scotia (AG) v. Walsh, common law spouses, unlike married ones, do not have statutory property rights. Thus, when a common law spouse claims a right in property against his/her former partner, the case to be made is one of constructive and/or resulting trust. When making a claim based on resulting/constructive trust, the imperative principles to prove are as follows: The defendant was enriched; The plaintiff has suffered some sort of deprivation; and, There is no juristic reason for the enrichment. In sum, the court will look to reimburse the unjust enrichment. The case of Kerr v. Baranow posited that where a common law spouse makes a property claim based on constructive/resulting trust, the court is not restricted in its decision to award a portion of the property to the claimant. As is most commonly awarded today, courts can award the claimant monetary compensation for their share in the property. The Supreme Court of Canada in Kerr v. Baranow explained that if a monetary award is to be handed over to the claimant, then the economic approach would be one of “value surviving.” This would essentially...

The Court of Appeal in Schimelfenig v. Schimelfenig, outlines the difference between “legal ownership” and “beneficial ownership." In Schimelfenig, the issue was whether the home was owned by the husband – which would then be subject to division with his wife, or if it was owned by his parents, as they had transferred title of the home to themselves and their son in joint tenancy. The Trial Judge neglected to highlight the difference between legal ownership and beneficial ownership. He ruled that the husband did not own the home (and therefore the home was not subject to division of property between him and his wife) because there was an abundance of evidence that his parents did not intend to give the home to their son as a gift. The transfer of ownership was clearly intended for estate planning purposes. On appeal, the Court disagreed with the Trial judge in terms of his reasoning, however, agreed that the husband was not entitled to a portion of the home. Unlike the Trial Judge, the Court of Appeal held that the husband was the legal owner of the property as his name was on title. However, as the evidence clearly conveyed, because the...

According to the Family Law Act, property (other than a matrimonial home) that is acquired, either as a gift or in the form of inheritance from a third party, even if it was received after the date of marriage, is property that will be excluded from the equalization process. This property must be in existence on the date of separation. In addition, in order for the entirety of the inherited funds to qualify as an exclusion, it must have been kept separate and not co-mingled in a joint account. Therefore, technically, the property that you acquired through inheritance is your property. Accordingly, your spouse is not and will not be entitled to the value of your inheritance. However, there is an exception to this general principle. In the event that the property you have inherited, or the gift that you have obtained, increases in value throughout your marriage, then your spouse may be entitled to half of the increase in value since the time of the marriage. In the event that you want to protect any gifts or inheritance from a third party, either before or following the time of marriage, and you do not wish to have the increased value vulnerable to equalization,...

Individuals in a family law case may have valid concerns their spouse will hide property or deplete their assets. Your family law attorney has many different tools that he or she can use to protect property in the context of a family law dispute. Under section 12 of the Family Law Act, a court may order that property owned by either of the spouses is to be preserved during the litigation. A court may make a final or a temporary preservation order. Preservation can have many different meanings. For example, the court can, among other things: Preserve a specific asset so that it may not be sold or encumbered; Freeze bank accounts so that no-one is able to deal with them until further court order; Make an order pertaining to the safekeeping of property. If you are concerned about preserving your property in your family law case, contact an experienced family law attorney at Krol & Krol today.