Division Of Assets in a Divorce Case

Divorce and dividing a property concept. Man and woman are signing divorce agreement.

At Epstein and Associates, we know that during a divorce case, one of the main concerns will be protecting your assets. Our goal is to ensure that you leave the marriage in the best possible financial position. Since our firm focus is divorce and family law, we are here to help you accomplish your goals. 

According to the divorce and separation laws in Ontario, in the event a marriage ends, there is a recognition of equal contributions for each party in the marriage. The law states that the value of any kind of property purchased during the marriage by a spouse that still exists is that the time of separation must be divided equally between both parties. If a property increased in value during the marriage, the inflated amount must be equally separated as well. 

There are possible exceptions to the rules, which mainly deal with inheritances and significance that were received during the marriage but not used towards the matrimonial home. This is something that can be discussed with your lawyer to ensure that assets are split correctly. 

Pension Splitting

Since 2012, the Family law act states that there will be a division of pension assets if a marriage does result in divorce in Ontario. 

When it comes to pension splitting if you have to pay a former spouse a settlement, the amount can vary based on the value of their pension plan. A pension plan administrator will be responsible for determining the value of the pension plan and will ensure that spouses do not have to hire an actuary to do it for them. The rules established in 2012 apply to married couples in Ontario, where one spouse is a part of the Ontario pension plan but only if they are separated:

  • On or after January 1st, 2012; or
  • Before January 1st, 2012, if they had not yet resolved their property settlement by that date.

The new rules apply to common-law couples if they have agreed previously to share the value of the pension plan. 

The new provisions allow for the pension to be divided at source, whereby the plan administrator effectively creates two plans out of the one, or if the holder of the plan prefers, the present-day value of the pension may be split by other means to ensure that one half of the value is transferred to the other spouse.

Marital Property Division

The matrimonial home has a special exemption when it comes to the division of assets. A matrimonial home brought into the marriage by one party will not be included in a marital deduction.  Having said that, it is important to pay particular attention to when a property is defined as a matrimonial home.

If you are married, both of you have an equal right to stay in your home unless a judge decides that one of you must move out. Since there is an equal right to stay in the home, neither party can not rent it out, sell their portion of the house, mortgage or sublet it, without the others’ permission.

However, during separation, if both parties cannot mutually decide who should live in the house, a mediator, arbiter or judge will have to make the decision for them. Once a final decision is made a lawyer will start to facilitate an order or agreement for exclusive possession that allows one spouse to use it exclusively.

There is a possibility that after the separation and divorce either party cannot afford to stay in the home, in which case the property should be sold and assets will be divided equally. The separation of assets can change based on divorce cases so it is best to speak with a lawyer to ensure you are not missing out on funds, or assets that you are legally entitled to.

It is important to note that ownership of the matrimonial home, whether it is solely held by one party or with third parties, and other extenuating circumstances, such as any disabled parties or children, may factor into what can be done with the property and how it will be equalized.  It is important to discuss these issues with a lawyer.

Conclusion & External Support Links

No two property disputes are the same, and our Ontario divorce lawyers are available to deliver individualized legal representation to every client we help. We can assist you in developing creative solutions for your property dispute, to protect you.

To learn more please review the blog articles below: 

For more information or to start and discuss your divorce case and asset splitting please contact us today.