29/03/2017 0 Comments
The Property Rules Upon A Separation
On a separation between spouses, the Net Family Property of the Parties is equalized further to the provisions of our Ontario Family Law Act. Except for jointly owned assets, the value of such property is determined at the valuation date or in other words, the date of separation. A separation occurs when one of the spouses determines that there is no reasonable prospect of continuing cohabitation. It only takes one. “Spouse” under the statute means legal spouses i.e. they are married to each other.
The parties can agree as to the division of their property and negotiate the terms of a separation agreement between them. It does not necessarily have to be the exact science as set out in the statute. Alternatively and where no agreement can be reached, property division is determined by an Application to a Justice of the Ontario Superior Court of Justice. The Ontario Court of Justice, formerly known as the Provincial Court, has no jurisdiction to determine these issues.
Property is equalized, meaning that the spouse whose net family property is the lesser of the two net family properties, is entitled to one-half of the difference between them. Think of the concept of net worth-assets less liabilities. Upon equalization, each spouse ends up with the same net worth.
It does not matter how the property existing at the time of separation has been acquired. One spouse may have been a stay at home parent, one spouse may have been a workaholic, one spouse may have been a saver and one spouse a spender, both spouses may have been employed on a full time or a part time basis. The law recognizes that marriage is an economic union and as such the parties respective roles in the marriage are given equal consideration-the property acquired by them together is equalized.
There are some exceptions to the rule particularly as relates to inheritances and gifts.
Generally speaking you get to keep the value of the property you brought to the marriage. Unless otherwise agreed, this needs to be proven. Once proven, the value of such property and at the date of the marriage is subtracted from the value of the parties property at the time of separation, before division.
John and Mary separate. John has a net family property of $1,000,000. and Mary has a net family property of $300,000. There is no date of marriage property of either party. John pays to Mary $350,000.00.
The same facts as above but John had date of marriage property he can prove with a value of $500,000. John pays to Mary $100,000.
One of the most important underpinnings of Family Law is that there must be full and complete financial disclosure as between the spouses. This is generally effected through the exchange of financial particulars and productions as between the parties respective lawyers. A financial statement is prepared and executed by each party under oath and exchanged between counsel. Cross-examination on financial disclosure may also occur and each party gives evidence under oath.
Under the statute, the Superior 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 specified circumstances set out in the statute.
Finally remember that your claim for equalization of property shall not be brought after the earliest of:
a) two years after the day the marriage is terminated by divorce or judgement of nullity;
b) six years after the day the spouses separate and there is no reasonable prospect that they will resume cohabitation;
c) six months after the first spouses death.
Contact C. Richard Buck, Divorce Lawyer in Kitchener.
It is possible for both married and common law couples to have a claim against one another’s assets if they separate, but under different conditions. Contact C. Richard Buck’s Law Offices for advice and assistance in this potentially difficult area of Family Law, especially if you are unmarried, the area can be highly unpredictable. C. Richard Buck can help you navigate the complicated rules surrounding domestic contracts. Call today: 519-579-3400.