Unequal Marital Property Division: 10 Notes

  • lorisa stein unequal marital property divisionIn Ontario, the default position on the division of marital property is the equal division of the difference in value of each spouse’s property.
  • Property is valued on both the date of marriage and the date of valuation. The date of separation may be a different date than the valuation date.
  • The definition of property is broad and may include legal and equitable ownership, a partial interest,  reality, memberships, professional licenses, contractual rights, business guarantees; the value of excluded property will be withdrawn from the value equalization calculation
  • Depending on the process used, a couple may agree to allow some discretion or latitude as to the value of an asset if, for example, the date of marriage was three decades ago, memories aren’t clear, or documents no longer exist.
  • Full financial disclosure is a legal right of each spouse. Persistence to attain full access may lead to the initiation of litigation and a judge will order the disclosure unless there are unusual circumstances.
  • The governing legislation, the Ontario Family Law Act supports the public policy of predictability and finality when it comes to the issue of dividing property between married spouses. Division of property is permitted once.
  • Set legislated deadlines to decide the division of marital property are within 6 years of separating, 2 years of divorcing, and 6 months after the first spouse’s death. Extending timelines requires judicial intervention.
  • The occasions to depart from equalizing the net family properties are again tightly confined to specific circumstances.
  • The test to divert from the standard path is if equaling net difference between the net family properties of each spouse would leave an “unconscionable” result. Unconscionable does not mean fair.
  • Unconscionability is a high threshold to meet and the onus to meet the test lies with the spouse making the claim. Essentially, the test to meet is whether the facts would offend the conscious of the court if the equal division were to be ordered.

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