In most circumstances division of family assets in a divorce is split evenly between both parties, but there are some case scenarios that this might not be the case.
We have outlined what a spouse is entitled to in a divorce and how division is handled in Ontario.
Quick Division of Asset Overview: How Children Play a Role
If you and your spouse were legally married, in a common-law relationship with children, or in a common-law relationship for at least 3 years without children, the law may require one of you to pay spousal support to the other.
When it comes to property though, married couples share in property accumulated during marriage automatically, where in common-law relationships there has to be something that ties the party to the property. In common-law relationships a number of factors are taken into consideration, such as but not limited to, the duration of the relationship, the roles of the parties in the relationship, the comingling of funds and whether there was a joint family venture.
How is Property Divided?
Marriage and divorce, and the provinces have the authority to enact legislation dealing with property and civil rights in the province. This constitutional division of powers means that a married couple’s divorce will be sanctioned under the federally enacted Divorce Act, while the division of a married couple’s assets is determined by reference to a provincial statute. In Ontario, the relevant statute is the Family Law Act.
Asset Division in Ontario
In order to affect the actual division of property, there are two concepts under the Family Law Act that come into play; net family property and equalization payment.
Net Family Property
Each spouse will prepare:
- A balance sheet of assets/property as of the valuation date is created.
- These assets are totalled to give a value.
- A spouse’s debts and liabilities are then subtracted from this figure.
- The value of the property that a spouse brings into the marriage is also deducted from this figure.
- There are also certain exclusions, the most common being inheritances, that go into the calculation but are excluded from that parties’ net family property.
- The resultant sum is a spouse’s “net family property.”
The payment is referred to as the “equalization payment.” If a spouse wishes to claim a deduction with respect to any property, it is that spouse’s responsibility to produce evidence supporting his or her entitlement to the deduction.
A spouse sets the equalization process in motion by making an application to the court, which must be initiated within a certain time frame.
Essentially, the equalization payment is one-half of the difference between the two parties’ net family property. For example, if one party has 100 dollars and the other has 50, the equalization payment would be 25 dollars so each party leaves the relationship with 75.
The term “matrimonial home” is defined in Section 18 of the Family Law Act (Ontario) as “every property in which a person has an interest and that is, or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and [their] spouse as their family residence”.
Only married parties have a matrimonial home. Parties who live together and are not married do not have a “matrimonial home”, no matter how long they have lived together. Instead, parties who live together and are not married have a “family home”. A “family home” does not have the same legal status as a “matrimonial home”. The term “matrimonial home” includes:
- Real estate (detached home, condominium, townhouse, garden home, cottage or a farm)
- Leased premises (apartment or condominium)
- Personal property (trailer or a boat)
So long as the parties occupied the property at the date of separation
The matrimonial home’s value is never deducted from a spouse’s net family property (NFP) as a date of marriage asset, even if that spouse did own the property at the time of marriage.
But the home’s value is always included in the valuation date assets of the spouse who owns the home (or divided between the two spouses, if the title is held jointly).
Since every situation is different, it’s hard to give a quick answer to questions related to divorce.
Taking the time to talk to a divorce lawyer at Epstein & Associates about your concerns is a great place to start. If you need help to determine eligibility for spousal support or if you want to understand your obligations, contact us to speak to an expert in divorce and separation.