Category: Division of Property

It is common for separating individuals to want to rid themselves of the constant reminders of their ex, and therefore, to want to dispose of the remainder of their ex’s items that the ex has left behind in the residence. However, based on Ontario family laws, it is strongly advised that you not do so. Though the reasons behind doing so may be understandable, both for practical and emotional reasons, especially once your ex-spouse has permanently moved out of the residence, Ontario family law does not permit you to simply go ahead and get rid of their property. Ontario family law governs specific parameters under which you may go about this process. If you fail to abide by these Ontario family laws, you may be held accountable for returning these items to your ex-spouse. It is possible that you may be responsible for replacing them in the event that you cannot produce them. According to Ontario family law, you ought to provide your ex-spouse with significant notice to retrieve their items so that they may make the proper arrangements to do so before you go ahead and get rid of them. Your ex-spouse ought to be granted a fair opportunity...

The division of net family property and establishing how much money each spouse is legally entitled to upon the dissolution of a marriage is referred to as the “equalization of net family property.” According to the Family Law Act, the formula in determining one's net family property requires a calculation of one's net asset position on the date of marriage and on the date of separation. The basic parameter upon which the “equalization of net family property” is established as follows: The first step is to calculate each party's net asset position on the date of separation. It is then necessary to subtract any legally permitted exclusions. Legally permitted exclusions may include but are not limited to, inheritances, specific kinds of gifts, as well as items that both individuals have agreed to keep excluded from the division of property. It is then necessary to calculate each party's net worth at the date of his or her marriage. The net worth of each spouse the day that they got married is then subtracted from each of their net worth on the date of the separation. Finally, the party with the higher net family property pays the party with the lower net family property one-half...

A complex area of Family Law in Ontario is dividing pensions among separating parties; specifically, dividing the pension at source. The new laws in the Ontario Family Law Act with respect to dividing the parties' pensions, outline that a pension should be divided at source. Section 10.1 of the Ontario Family Law Act was intended to solve the problem of a court requiring the consent of both parties with respect to transferring the parties’ pensions from one to another. Rule 10.1 of the Family Law Act states as follows: (1) A person may apply to the court for the determination of a question between that person and his or her spouse or former spouse as to the ownership or right to possession of particular property, other than a question arising out of an equalization of net family properties under section 5, and the court may, (a) Declare the ownership or right to possession; (b) If the property has been disposed of, order payment in compensation for the interest of either party; (c) Order that the property be partitioned or sold for the purpose of realizing the interests in it; and, (d) Order that either or both spouses give security, including a charge on...

The law with respect to division of property between spouses in Ontario is governed by the Family Law Act. The Family Law Act dictates that the spouses must conduct a Net Family Property when dividing up their property. This Net Family Property will result in one party having to pay his/her spouse an equalization payment. However, in exceptional cases, the Family Law Act allows for an “unequal” division of property. These circumstances are outlined in section 5(6) as follows: (6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to, (a) A spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage; (b) The fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith; (c) The part of a spouse’s net family property that consists of gifts made by the other spouse; (d) A spouse’s intentional or reckless depletion of his or her net family property; (e) The fact...

Heard v. Heard (2014 ONCA 196) deals with an asset owned by one party that declined in value after separation. The question is whether the owning party should bear those losses only. Or, whether both parties should shoulder the losses, when the asset is owned by only one of them. Facts The wife purchased a business investment, “LP Investment” before marriage. She was was responsible for much of its financial upkeep. After separation, the LP investment had monetary losses. It declined in value significantly. The trial judge ordered the wife to shoulder those “post separation losses”. The wife claims in the Court of Appeal that both the husband and wife should bear those losses equally. She argues that the losses should be accounted for in the equalization. Issue Should the post separation losses for the business investment be borne solely by the wife? Or should it be equally split between the husband and wife? Decision and Analysis  The Court of Appeal upheld the trial decision. They agreed that the losses after separation relating to LP Investment should be borne by the wife only: The wife was the registered owner of the investment She decided when it would be sold She used...

The courts in Ontario treat marriages as a form of partnership. As such, following separation and on the request of one of the parties, the court will assess the overall increases in the value of property accrued by the parties during a marriage and provide a balancing payment to one of the parties. In general terms, on separation, each spouse calculates his or her ‘net family property’ by deducting the value of his or her net asset position (being assets minus debts) as at the date of marriage from the value of the spouse’s net asset position as at 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. The payment that is made from one spouse to the other spouse is referred to as an ‘equalization payment.’ There are notable exceptions to these rules, which are known as excluded property. Excluded property is property that does not have to be included in a spouse’s net family property and the value of which is therefore not included in a determination of the equalization payment. For example, excluded property...

The division of property for married couples (both opposite sex and same sex) is governed by the Family Law Act in a process called the equalization of net family property. This process, however, does not apply to non-married couples who are cohabiting (also known as living in a common law relationship). People living in these types of relationships are not legally required to divide their property and are not entitled to any equalization of their net family property. In these situations, property is usually determined in accordance with title or ownership, meaning that property belongs to the party that purchased it. This applies to all property and can even include the home where the parties reside. That being said, there are exceptions to this, known as equitable trust remedies. These remedies are complex and will only apply in rare and very specific circumstances.  If you are unmarried and are considering a trust claim, these issues should be canvassed with an experienced family law lawyer.

When spouses separate there are applicable limitation periods in family law. A limitation period is a legally specified period beyond which an action may be defeated and/or a property right extinguished. For instance, in Ontario there are limitation periods relating to claims against property that are dependent on whether you and your partner married or not. For married parties who seek to equalize their net family properties the relevant limitation period is the earliest of the following: Six years after the parties’ date of separation; Two years after a divorce has been granted; or, Six months after the first spouse’s death. For common-law parties (who are not eligible to equalize their respective net family properties in Ontario) or married persons (where trust claims are available to them), different limitation periods are applicable depending on the following: Where an interest in land through a constructive trust is sought, there is a 10-year limitation period from discovery of the claim. Where monetary compensation only is sought, there is a two-year limitation period from discovery of the claim. Where a a constructive trust in an asset other than land (ex: RRSP, corporate shares, or pension) is sought, there is a two-year limitation period from...

A common issue that arises in cases is related to pets in family law. Specifically, how pets (like dogs and cats) are treated after a family breakup. In the context of family law in Ontario, pets are considered property and often the party who purchased the pet, is the owner of the pet. This can cause issues in family law matters as many people are very devoted to their pets and do not want to treat them as property. Some international jurisdictions, such as Alaska, are now empowering family law judges to take into account the well being of the animal in disputes that involve non-human family members. There was also a recent decision from the Small Claims Court in Nova Scotia that used a more nuanced approach to this pet issue. Despite the fact that one party purchased both of the parties’ dogs, the judge in that case awarded one dog to each of the parties. These decisions are largely a departure from the current property laws in Ontario. Many judges in Ontario have indicated that pets are not children and disputes cannot be resolved on the best interests of the pet. Parties may of course agree to an access schedule for pets in the event of...