division of property

Property Division for Married Couples

Married couples in Ontario are subject to the Family Law Act, Part I of which deals with the division of property.  The philosophy of the Family Law Act is that, subject to certain exceptions, any financial growth during the marriage is to be shared equally by both spouses.  Accordingly, upon separation or death, a calculation is done separately for each spouse to determine the growth in the value of that spouse’s assets during the marriage (called “net family property”) and a payment is then made by one party to the other (called “an equalization payment”).  Under the Family Law Act, there is no actual sharing of property and each party is entitled to retain whatever property they own, subject to the requirement that at the end of the day one spouse may have to make a cash payment to the other spouse.

In order to do the calculation, each party prepares a statement of his or her assets and debts at the date of marriage and at the date of separation or death.  The value of the net assets at the date of marriage is deducted from the value of the net assets at the date of separation or death.

The exceptions mentioned above relate primarily to matrimonial homes and inheritances and gifts.  A matrimonial home is a home in which you are both residing at the date of separation or death.  It is usually impossible to tell at the date of marriage whether a particular home will be a matrimonial home or not, since you cannot predict separation or death and do not know where you will be residing at that time.

If you are living in the same home at the date of marriage as at the date of separation or death, the value of the home at the date of marriage cannot be deducted from the value of the net assets at the date of separation or death.  In effect, the entire net value of the home is shared equally between the spouses.

Secondly, any gift or inheritance received by a spouse after the date of marriage is not to be included in that spouse’s net family property.  Nor will any growth from the gift or inheritance be included.  However, any income derived from the gift or inheritance will be included in the calculation unless the donor of the gift expressly states otherwise. 

If the gift or inheritance is used to purchase a matrimonial home (even a cottage or a ski chalet can be a matrimonial home if used by the spouses at the time of separation or death) or to increase the equity in such a home, it loses its protection.

The above information is an explanation of how the Family Law Act applies in the absence of an agreement.

Property Division for Unmarried Couples

The Family Law Act does not apply to cohabiting couples who are unmarried.  Cohabiting couples generally divide their property on separation in accordance with ownership.  However, where one party has contributed financially or otherwise to property owned by the other, the contributing party may be able to seek compensation or an interest based upon equitable principles.  Whether or not a cohabiting spouse has a claim to property of the other spouse, depends on the particular circumstances.  This is called a claim based upon unjust enrichment.

skills, understanding and experience

Kelly Jordan has extensive skills and expertise in all areas of family law. She has a reputation for her abilities as a tough advocate for challenging cases but also for her abilities to maintain and pursue fairness by way of mediation and alternate dispute resolution

If you are seeking solid experience of a lawyer who is both understanding and skilled, contact Kelly or her law clerk Liz to set up an appointment.


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Kelly recently contributed
a chapter on family property
rights for cohabitants
to the newest publication
on Ontario family property law..
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Property Rights and Obligations Under Ontario Family Law

Testimonials

"Kelly Jordan is highly skilled in her specialized area of reproductive law. Having working in the field of third party reproduction for over 20 years, it is essential to my business that I refer clients to lawyers who are as empathetic as they are qualified. Kelly Jordan and the members of her firm are such people. Her work is a wonderful compliment to the services I provide and the feedback I receive from clients I have referred to her, has always been very positive. Whether a client needs a contract drafted or a legal declaration done, I am always confident services will be provided in a timely manner and with the utmost skill and compassion. I am pleased to work with Jordan Battista and would not hesitate in sending my clients to her.

A Family Law Colleague

Just a quick note to say thank you. I know we had a few battles along the way but I have to credit you and your office for managing my file in a professional, expedient and economically beneficial manner. Your personal, yet matter of fact way of approaching a very difficult situation was quite outstanding and progressive. Though I would never want to find myself in a similar situation, it good to know your firm is only a phone call away.

With deepest respect, I.W.

"For being the past Chair of the family law section of the CBA. I am impressed with all the work you do for the profession. ”

A Family Law Colleague