Property Division in Toronto Divorces: What You Need to Know

Property Division Laws in Ontario

Under Ontario’s Family Law Act, property division is governed by principles designed to ensure fairness in the distribution of marital assets. Unlike some jurisdictions that adopt a community property approach, Ontario uses a method of “equalization,” a form of equitable distribution. This process does not necessarily mean that property is divided equally, but rather that the value accumulated during the marriage is divided fairly.

Legal Framework for Property Division

The property division process under the Family Law Act focuses on the equalization of “net family property.” When a marriage ends, each spouse calculates their net family property (NFP), which is essentially the value of all assets acquired during the marriage minus debts and other liabilities. Each spouse’s NFP is calculated from the date of marriage to the date of separation, often referred to as the “valuation date.”

The spouse with the higher NFP makes an “equalization payment” to the other spouse. This payment represents half the difference between their NFPs.

Key Terms

1. Matrimonial Home: In Ontario, the matrimonial home holds a unique status. It refers to any property that a couple designated as their family residence at the time of separation. The matrimonial home is subject to special rules during property division. For instance, its value is typically shared, regardless of which spouse legally owns the property. Furthermore, both spouses have equal rights to remain in the matrimonial home until it is legally sold or one party is granted exclusive possession.
2. Equalization Payment: This is a financial payment made by the spouse with the higher NFP to the other spouse, intended to equalize their net family properties. The amount is calculated as half the difference between their respective NFPs.
3. Net Family Property (NFP): NFP is calculated by subtracting the value of debts and liabilities from the value of assets at the time of separation. Assets to be included are those acquired during the marriage, plus any increase in the value of property brought into the marriage, minus any exclusions like gifts or inheritances received during the marriage that were not invested in the matrimonial home.

Eligibility for Property Division 

In Toronto, as in all of Ontario, property division is a critical aspect of divorce proceedings. However, not everyone is eligible for property division under the same rules.

Who is Eligible for Property Division?

1. Married Couples: In Ontario, married couples are subject to the Family Law Act’s property division provisions. This means that upon divorce, their assets and debts acquired during the marriage are subject to equalization, regardless of how they are titled or registered. Even if only one spouse holds legal ownership of certain assets, they may still be subject to division upon divorce.
2. Common-Law Relationships: Unlike married couples, common-law partners do not have the same automatic rights to property division under the Family Law Act. Instead, they are governed by different rules. Generally, common-law partners may be eligible for property division if they have been in a “spousal relationship” for a certain period, typically defined as living together continuously for three years or more or having a child together and living together.

Importance of Legal Marital Status

The legal marital status of a couple has a significant impact on their property rights upon separation or divorce. For married couples, the Family Law Act provides a comprehensive framework for property division, ensuring that assets accumulated during the marriage are divided fairly between spouses.

In contrast, common-law partners do not have the same automatic rights to property division. Without a legal marriage, the division of assets and debts can be more complicated and may require negotiation or legal action to resolve. Common-law partners must establish their entitlement to property division based on the specific circumstances of their relationship, including factors such as the duration of cohabitation and whether they have children together.

Types of Property Subject to Division 

Properties Subject to Division

1. Real Estate: This includes the family home, vacation properties, rental properties, and any other real estate owned by the couple. The value of these properties is typically assessed and divided equitably between the spouses.
2. Investments: Any investments held by the couple, such as stocks, bonds, mutual funds, or retirement accounts, may be subject to division. This includes both registered accounts (like RRSPs and TFSAs) and non-registered accounts.
3. Business Interests: If one or both spouses own a business or shares in a business, the value of those business interests may be subject to division. This can be a complex aspect of property division, often requiring the expertise of financial and legal professionals to accurately assess and divide the value of the business.
4. Personal Property: This includes items such as furniture, vehicles, artwork, jewelry, and other personal belongings acquired during the marriage. While personal property may not have significant financial value, it is still subject to division as part of the overall property settlement.

Excluded Property

Excluded property refers to assets that are not subject to division upon divorce because they are considered separate property of one spouse. Common examples of excluded property include:

1. Gifts: Items received by one spouse as gifts during the marriage, such as jewelry or family heirlooms, are typically considered the sole property of the receiving spouse and are not subject to division.
2. Inheritances: Similarly, inheritances received by one spouse during the marriage are generally considered the separate property of that spouse and are not subject to division in divorce proceedings.
3. Property Agreements: Spouses may also enter into agreements, such as prenuptial or postnuptial agreements, that specify certain assets as excluded from property division in the event of divorce.

Steps in the Property Division Process 

Step 1: Initial Assessment

The property division process often begins with an initial assessment of the couple’s assets, debts, and financial situation. Each spouse gathers documentation regarding their assets, including real estate holdings, investments, bank accounts, retirement accounts, and personal property. Debts, such as mortgages, loans, and credit card debt, are also documented.

Step 2: Determination of Net Family Property (NFP)

Once all assets and debts are identified, each spouse calculates their net family property (NFP). NFP is calculated by subtracting the value of debts and liabilities from the value of assets at the time of separation.

Step 3: Equalization Payment Calculation

If one spouse’s NFP is higher than the other’s, an equalization payment may be required. The spouse with the higher NFP typically makes an equalization payment to the other spouse to achieve a fair distribution of assets accumulated during the marriage. This payment is calculated as half the difference between the spouses’ NFPs.

Step 4: Negotiation and Mediation

Spouses may attempt to negotiate a property settlement agreement that addresses the division of assets and debts outside of court. Mediation may also be employed to help resolve disputes amicably with the assistance of a neutral third party. During mediation, both spouses work together to reach a mutually acceptable agreement on property division.

Step 5: Arbitration or Court Proceedings

If negotiation and mediation are unsuccessful, unresolved disputes may proceed to arbitration or court proceedings.

Step 6: Final Agreement and Implementation

Once a property division agreement is reached through negotiation, mediation, arbitration, or court proceedings, the final agreement is documented and implemented. This may involve transferring ownership of assets, paying equalization payments, and updating legal documents to reflect the agreed-upon division of property.