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When married people separate, both spouses are entitled to an equalization of the net family property. Marriage is considered a financial partnership, and when the marriage ends, the benefits of that partnership are meant to be shared by both parties, regardless of who owns the assets.
With some exceptions, the assets that you accumulate during your marriage must be shared with your spouse. Whether you’re before the courts, or negotiating a separation agreement, both parties will complete a detailed financial statement which sets out their respective net worths on the date of marriage and the date of separation. Whoever has the higher net family property must equalize this value with their spouse (i.e. pay the other spouse half). Typical assets which fall into the calculation of net family property include the matrimonial home, any other real estate, investments, businesses, and pensions. Liabilities on the date of separation reduce your net family property. Debts such as mortgages, credit cards, personal loans or tax liabilities are, therefore, relevant in determining net family property.
In order to calculate the proper value for a pension, you will usually need to obtain a report from an actuary. Alternately, if you have a pension which is governed by the Ontario Pension Benefits Act, you would apply to the pension plan’s administrator in order to obtain the family law value of your pension. Whatever its value, the pension is discounted for tax purposes with a tax rate that is meant to approximate the rate you would be paying in retirement.
There are special rules for how the value of the matrimonial home is dealt with. If title to the home is vested solely in the name of one spouse, even if the spouse purchased the home prior to the marriage, they are not entitled to include it as an asset on the date of marriage. The effect of this is that the home-owning spouse will automatically have a significantly higher net family property than the other spouse. In a situation where there are no other assets involved, the non-titled spouse ends up being entitled to one-half of the equity in the home.
There are ways to protect your assets from potential family law claims. The most straightforward option is to negotiate and sign a comprehensive domestic contract with your spouse either before, or during, your marriage. A significant amount of financial disclosure must be exchanged between the parties to ensure that the contract is legally enforceable, and both parties should obtain their own independent legal representation. One lawyer cannot draft a separation agreement for both parties, although a mediator can. Currently, it is probably more common in second marriages, rather than first marriages, for one partner to want to contract out of the property division regime of the Family Law Act.
When one spouse owes the other a sizeable equalization payment, there are usually two routes available to finance the payout. Either proceeds are taken from that person’s share of the equity in the matrimonial home, or part of their pension is rolled over into the name of the other spouse. Given that interest is owing on the equalization payment as of the date of separation, it’s advisable to make arrangements for payment of whatever amounts are owing as soon as possible.
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Kerry Fox, LL.B.
Barrister & Solicitor
90 Centrepointe Dr,
Nepean, ON K2G 6B1
Tel: (613) 224-4400
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