The division of property can be simple or complex, depending on the individual facts of each case. This section provides an overview of the general principles that govern this process.
To divide property, the parties must establish their assets and debts on the date of marriage and the date of separation. Subject to some exceptions, the parties are entitled to split any change in the value of this property. This is done by calculating Net Family Property (“NFP”) which means the value of assets on the marriage date, subtracted from the value of assets on the date of separation. Special rules apply to the matrimonial home and it is not always possible to deduct its value even if it was owned by one party prior to the marriage.
After calculating NFP, the amount is split equally between the parties. This is generally done by a property transfer, by retention of certain assets, or by a transfer of funds.
Items that fall under NFP often include the following:
- Pensions (in accordance with the family law value obtained from the plan administrator)
- Real Estate Interests
- Bank Accounts
- Business Interests
- Other valuable property
Items that do not usually fall under NFP include:
- Inheritances (if traceable)
- Gifts (if traceable)
- The value of any property brought into marriage (except the matrimonial home)
Treatment of the matrimonial home is an important exception to the way other matrimonial property is generally divided. After paying out any existing mortgages or other liabilities registered against the home, the net value of the home is typically split as of the date it is sold or transferred (and this could be well after the separation date). This is the starting point irrespective of who bought the home into the relationship, whether a party owned it at the date of marriage, who’s name is on title to the property or who paid the mortgage during the marriage. Note that some important exceptions apply.
Since the matrimonial home is often the most valuable asset to be divided and it is critical to understand its special treatment under Ontario Divorce Law.
Finally, spouses may be entitled to unequal division of matrimonial property if a marriage has lasted less than five years, or in other rare cases such as fraud or unconscionable conduct one spouse at the expense of the other. This is very rarely seen as the threshold to obtain unequal division is high.
These lists are not exhaustive. Contact us should you have any questions about the way property is divided in Ontario.