Forward-Thinking, Results-Oriented, Family Law Lawyers Representing Clients in Division of Property Cases
Married spouses who decide to end their marriage are legally entitled to a division of the property that they have amassed together during the marriage. In Ontario, this process is known as the equalization of net family property. The Ontario Family Law Act does not provide for the same automatic property rights for unmarried spouses as it does for their married counterparts. However, a common law spouse may be entitled to payment upon separation based on a direct or indirect contribution to property owned by his or her former partner. As division of property issues in family law can be complicated, it is vital to receive legal advice early in the process of separation or divorce, in order to ensure you understand and protect your legal rights.
At Gelman & Associates, our exceptional team of family law lawyers has decades of collective experience representing clients in division of property cases. Serving six offices throughout Aurora, Barrie, Downtown Toronto, Mississauga, North York and Scarborough, our lawyers guide clients through the family law system with compassion and understanding, while still aggressively protecting their rights. All of our lawyers emphasize good lawyer-client communication and treating the client with the utmost respect. We advocate for the best potential property division arrangement for our clients and are not afraid to get tough when necessary. From the second you call to book a consultation, our goal is to offer outstanding legal counsel and a customer-centred approach to the practice of family law.
Equalization under the Ontario Family Law Act
Pursuant to Ontario’s Family Law Act, when two people enter into a marriage, each spouse becomes automatically entitled to an equal share of the profits of that marriage. The right to equalization is triggered when the marriage dissolves or one spouse dies. Each partner then becomes entitled to one half of the value of property accumulated during the marriage.
In a divorce proceeding, the first step to calculating the equalization entitlement is to complete a “Form 13.1 Financial Statement.” In this form, each spouse will need to disclose the value of their assets and liabilities on three key dates:
- date of marriage;
- date of separation; and
- current date.
Based on this information, your respective lawyers can calculate the total assets and liabilities that each spouse has accumulated during the marriage in order to determine each spouse’s “net family property”. Based on this formula, one spouse may be required to pay the other an “equalization payment”, in order to equalize the value of each spouse’s net family property.
If the parties cannot reach an agreement, then the Court will determine the equalization payment.
In the context of equalization, property refers to property of all kinds, including:
- bank accounts;
- vehicles; and
Certain assets, collectively known as “excluded property”, are not included in the calculation of an individual’s net family property. For example, gifts or inheritances received by a spouse during the marriage may qualify as excluded property in some circumstances.
It is also important to note that the Family Law Act provides for unique treatment of the matrimonial home in the equalization process. Questions about property division and the matrimonial home should be discussed with an experienced family law lawyer to ensure your rights are protected.
Property to be Divided Upon Marriage Breakdown
Excluded Property Upon Marriage Breakdown
Contact Our Family Law Lawyers for Support with Division of Property Disputes
At Gelman & Associates, our experienced family law lawyers provide clients with the information they require to make educated decisions about the division of property upon separation or divorce. In addition to the extensive web-based resources available to our clients, all clients are given complimentary access to our firm’s webinar “Understanding Your Financial Statement – A Primer on Getting it Done”.
Serving offices throughout Aurora, Barrie, Downtown Toronto, Mississauga, North York and Scarborough, our offices are easily accessible by transit and off-highway. In order to be accessible to clients and prospective clients, our phone lines are open Monday to Friday from 8 AM to 8 PM. Call us at (416) 736-0200 or 1-844-736-0200 or contact us online for an initial consultation.
A separation agreement executed by both parties can be enforced when the spouses get a divorce later.
First, we must define what “seasonal cottage” means. If “seasonal cottage” pertains to the description of the cottage, like a dwelling regularly used by the family during winter, then that may be considered a matrimonial home. However, if “seasonal cottage” pertains to the frequency of when the family uses it, then that means it is not used regularly and thus may not be included in the meaning of matrimonial home.
We must also consider if both spouses already registered a matrimonial home with the land registry office. In this case, if what was registered is a dwelling other than the regularly used seasonal cottage, then that seasonal cottage may not be considered a matrimonial home.
If you received the inheritance prior to the marriage, the valuation of the inherited property at the time of the separation less the valuation of the inherited property at the time it was received will be included the net family property.
Suppose you received the inheritance before the marriage. In that case, the valuation of the inherited property at the separation, less the valuation of the inherited property when it was received, will be included in the net family property.
If you received the inheritance during the marriage, generally speaking, the value of the inheritance at the time of the separation will be excluded from the net family property.
Complexity may arise depending on how the inherited property was used during the marriage or if it can be identified separately at the time of the separation.
An example of the situation on identifying the inherited property is inherited cash. Inherited cash is advised to be maintained in a separate account and not co-mingled with spouses’ individual or joint accounts.
Further, suppose the inherited property earns income (not increase in value of the inherited property), or the inheriting spouse derived income from its use (an example is the sale of the inherited property). In that case, the income is included in the net family property. Further, if the inherited property earns income (not increase in value of the inherited property) or income was derived by the inheriting spouse from its use (example is the sale of the inherited property), the income is included in the net family property.