Mississauga Family Lawyers Advising on Equalization Following Separation or Divorce
In family law, one of the more contentious matters former couples tend to fight over are finances and the division of assets. Following a separation or divorce, spouses are each entitled to an equal share of the net wealth accumulated by both spouses during the marriage (i.e. the equalization of net family property). This can often lead to disputes and prolonged litigation, but it does not have to.
Determining what your net family property is can be challenging, particularly for high-net-worth individuals, and is best undertaken with the help of a knowledgeable family lawyer. Ginny Lee, acting in her capacity as of counsel* to Bader Law, has been helping clients with family law matters, including separation, divorce, and related issues such as equalization and division of property for several years. She is highly skilled at addressing the financial aspects of a split and adept at helping clients identify and locate assets and ensure they are getting everything they deserve following the breakdown of a marriage.
Net Family Property
Net family property is, essentially, the growth in a spouse’s net worth from the date of marriage to the date of separation. In order to determine your net family property, you must take the total value of your assets as of the date of separation (minus any debts or liabilities accumulated during the marriage) and subtract the net value of your property at the date of marriage.
Property includes all assets acquired during the marriage including real estate (cottages, vacation homes, etc.), personal property (cars, boats, art, etc.), bank accounts, shares, and pensions (including RRSPs). Some property may be exempt, including inheritances or gifts received after marriage from someone other than the spouse. Property must be valued as of the date of separation (generally the date that spouses stop living together).
Debts accumulated during the marriage include, among other things, mortgages, loans, credit cards, and money owing to the CRA.
Each spouse conducts their own net family property calculations. The spouses with the higher net family property typically pays the other spouse one-half of the difference between the two values (the equalization payment). The value of your matrimonial home (the home you lived in during your marriage) does not generally impact the equalization payment.
Either spouse can apply for equalization of family property at any time following the breakdown of a relationship, subject to limitations under the Family Law Act. An equalization claim must be made within six years of the date of separation or two years from the date of divorce, whichever date comes first.
Spouses are entitled to equalization regardless of their conduct. In other words, no matter how hurtful a spouse’s behaviour or conduct may have been during a marriage (for example, infidelity), a court will not compensate the other spouse by awarding them a larger share of the net family property absent of other factors.
The Matrimonial Home
The matrimonial home is given special status in family law and is treated differently than all other assets during the equalization process.
The value of the matrimonial home is not deducted from a spouse’s net family property as a date of marriage asset, even if that spouse owned the property as of the date of marriage. A matrimonial home is, however, included as a valuation date asset of the spouse who owns the home or will be divided between the two spouses where they jointly own the home.
Neither spouse can sell their interest in the matrimonial home (unless they have the permission of the court or the other spouse has released their rights to the matrimonial home through a separation agreement). In addition, both spouses have an equal right to possession of the home (which is unrelated to ownership).
The treatment of the matrimonial home in this way highlights the benefit of marriage contracts or domestic agreements. In many cases, this treatment can lead to an unfair result for a person who already owns the home the couple moves into, or where the spouses of families of the spouses contribute disproportionately to the purchase of the home. A lawyer should be consulted as to how to protect the value of this asset.
Contact Bader Law for Experienced Guidance on Division of Property and Equalization Matters
Given the complex nature of property division following the breakdown of a marriage, and the possibility that disputes over such division of assets have the potential to become extremely contentious, consulting with a highly experienced family lawyer is critical to ensure your rights are protected. To discuss your matter with Ginny Lee, of counsel to Bader Law, contact Ginny Lee by email or by phone at (647) 767-5421.
*Note that Ginny Lee is an independent practitioner and not an employee of Bader Law.