Fact Sheet: Property Division

Publication Date: 
2008
Resource Origin: 
Springtide

When people live together they often shared their possessions and do not always keep track of who has bought what; dividing up this property when the relationship ends can be difficult.

People who are married are considered by law to be in a partnership to which both have made important contributions and so they share equally in the value of the family's property when they separate. This approach most often protects women, who are often the spouse to remain at home raising the children and who usually have lower income than men.

Women in common-law relationships do not have this same protection.

What is family property?

Family property includes real estate (the house, cottage), vehicles, personal items (books, jewellery, clothes), household items (furniture, appliances), money (bank accounts, RRSPs, investments), pensions and debts.

How do I figure out what I get?

Essentially, when married people separate, they tally up the value of all their family assets and family debts then subtract the debts to determine their "net family property."   The value of this is then shared between them equally.

For example:

Assets

Debts

  • House: market value: $200,000
  • House: mortgage: $100,000
  • Car: $12,000
  • Credit cards: $5,000
  • RRSPs: $25,000
 
  • Pension: $70, 000
 

Total assets:
$200,000 + $12,000 + $25,000 + $75,000 = $312,000

Total debts:
$100,000 + $5,000 =
$105,000


Net family property: $312,000 - $105,000 = $207,000
Equalization: $207,000 / 2 = $103, 500

Each spouse receives assets or property to a total value of $103, 500.

Is everything I own family property?

Some property is excluded from what is considered net family property, in particular, inheritances and property that either person owned before the date of the marriage.

Can I stay in the house?

Both parties have an equal right to remain in the matrimonial home until it is sold, even if it is registered in only one of their names and even if it was bought before the marriage.

Where there has been abuse, the woman can make an application for an order for "exclusive possession" of the matrimonial home, even if it is registered in his name only, which will allow her to stay in the home with the children and will prohibit him from coming there.

What if I am not married to my partner?

Common-law relationships are not considered partnerships by the law in the same way as marriages are, and there is no automatic right to an equal sharing of the property.

Generally speaking, at the end of a common-law relationship, people leave with what they brought in plus whatever they can prove they bought while they were together.

There is no special protection for the "matrimonial home" as there is for married couples and, if it is registered in the man's name only, the woman has no automatic right to remain in it and cannot get an "exclusive possession" order.

In a common-law relationship, the spouse who does not own the property can seek a share of its value by demonstrating to the court her contributions to its value.

This could be a financial contribution such as paying for utilities, renovations to the home or family vacations.  It could also be non-financial such as remaining at home to raise their children and run the household.

Either of these contributions can give her right to a share of the family property but she will have to go to court to fight for it.

People who plan to live together can also make arrangements for how they divide their property by entering into a cohabitation agreement before or during their relationship.

This Fact Sheet contains general legal information only.  It is not a legal document, nor is it a replacement for legal advice.  Anyone in a situation involving family, immigration or refugee law is strongly urged to meet with a lawyer to understand fully their rights and responsibilities, the legal options available to them and appropriate legal processes.  A lawyer can interpret the law and provide advice based on the personal facts and information in the specific case.

For information about finding a lawyer in your community, contact Legal Aid Ontario at 1 800 668 8258 or 417 979 1446.

You can also visit Legal Aid Ontario online at www.legalaid.on.ca