Property Division and the Matrimonial Home in Ontario

Who this helps

Married and common-law spouses who need to divide property, deal with the matrimonial home, value a pension or business, or understand what they owe or are owed after separation.

Equalization for married spouses

Ontario does not split each asset in half. Under the Family Law Act, each married spouse calculates their net family property: the value of what they own on the valuation date (usually the date of separation), minus their debts, minus the net value of what they brought into the marriage, minus excluded property. The spouse with the higher net family property generally pays the other half of the difference, called an equalization payment.

Excluded property can include gifts and inheritances received from third parties during the marriage, and certain personal injury awards and life insurance proceeds, provided they can be traced. A court can order an unequal division only in limited circumstances where an equal division would be unconscionable.

The matrimonial home

The matrimonial home has special rules. Both married spouses have an equal right to live in it, no matter whose name is on title, and one spouse generally cannot sell or mortgage it without the other's consent. Unlike other property, its value on the date of marriage is not deducted if it is still the matrimonial home at separation. Where living together is no longer workable, a court can order that one spouse have exclusive possession for a period.

Pensions, businesses and debts

Pensions are valued using the family law value provided by the plan administrator and can often be divided by transferring part of the value. Businesses and professional practices may need a formal valuation. Debts count too, and the date and purpose of a debt can affect how it is treated.

Common-law partners

Common-law partners do not have a statutory right to equalization in Ontario. A partner who contributed to property owned by the other may still have a claim based on unjust enrichment, for example where both worked to build up a home or business. Ownership on title and each partner's contributions matter, so keep records.

Deadlines

A married spouse generally must claim equalization within six years after separation, two years after a divorce, or six months after a spouse's death, whichever comes first. Common-law property claims are subject to their own limitation periods. Get advice early.

The process

1. Consultation to identify assets, debts and key dates.
2. Exchange of sworn financial statements and supporting documents.
3. Valuations where needed: home appraisal, pension statement, business valuation.
4. Negotiation or mediation of an equalization payment and division of the home.
5. A signed separation agreement or, if needed, a court application.

Documents to bring

• Date of marriage and date of separation
• Deed, mortgage statements and property tax bills
• Bank, investment, RRSP and TFSA statements on the date of marriage and separation
• Pension statements
• Records of gifts or inheritances you received
• Debt statements, including lines of credit and credit cards

Fees

We provide a written estimate or fee quote before work begins and accept Legal Aid Ontario certificates for eligible family law matters. Valuation and court filing costs are explained separately.

Next step

Book a consultation to review your property and deadlines. See also separation agreements and divorce and child and spousal support.