- An equalization claim must be made by the earliest of two years after a divorce or nullity judgment, six years after separation with no reasonable prospect of resuming cohabitation, or six months after the first spouse's death.
- A court may extend the time if there are apparent grounds for relief, the delay was in good faith, and no one will suffer substantial prejudice.
- A separation agreement may cover property, support and parenting, but it is unenforceable unless it is in writing, signed by the parties and witnessed.
Many people in Ontario finish their divorce and only later realize property was never sorted out. Then the question is how long they have left to ask for an equalization payment.
The answer depends on which of several clocks runs out first. This article explains those time limits, when a court can allow more time, and what is at stake in an equalization claim.
What equalization is and why it matters
On separation or divorce, the spouse whose net family property is smaller is entitled to one-half of the difference between the two spouses' net family properties. Net family property is the value of property a spouse owns on the valuation date, minus debts and permitted deductions, and it is never less than zero. RRSPs and pensions are counted as property.
Equalization is a payment to even out the difference. It is not a split of each item of property. If you miss the deadline, you may lose the right to ask for it.
The three time limits in Family Law Act s. 7(3)
An equalization claim must be brought by the earliest of three dates.
| Event | Time to make the claim |
|---|---|
| Divorce or nullity judgment | Two years after the judgment |
| Separation with no reasonable prospect of resuming cohabitation | Six years after the separation |
| Death of the first spouse | Six months after the death |
Because the earliest date applies, the two-year clock after a divorce judgment can run out before the six-year separation clock. For example, if you separated one year ago and the divorce judgment is made now, the two-year limit would end two years from now, while the six-year limit would end five years from now, so the earlier two-year date applies.
Can a court extend the time?
Sometimes. Under s. 2(8), a court may extend the time if there are apparent grounds for relief, the delay was in good faith, and no one will suffer substantial prejudice. All three matter, and an extension is not automatic.
Treat an extension as a fallback, not a plan. Whether you could meet that test depends on your facts, so it is worth speaking to a family lawyer as soon as you realize a deadline may have passed.
Dates and details that affect your claim
- The valuation date is the earliest of several dates, and one of them is the date the spouses separate with no reasonable prospect of resuming cohabitation. This is why your separation date matters for both value and timing.
- Some property is excluded from net family property, including gifts or inheritances from a third party received after the marriage (other than a matrimonial home), personal injury damages, life insurance proceeds, and property excluded by a domestic contract. The person claiming an exclusion must prove it.
- A court may award more or less than half the difference if equalizing would be unconscionable.
- Spouses in a void or voidable marriage entered in good faith are included as spouses under the Family Law Act, and a declaration of nullity can fix the valuation date, so equalization can still be available.
What to do next
A separation agreement is one way to deal with property, and it may also cover support and parenting. It is unenforceable unless it is made in writing, signed by the parties and witnessed. A court may set aside a domestic contract if, for example, a party failed to disclose significant assets or debts. How an agreement fits with the time limits depends on your situation, so it is worth confirming with a lawyer.
- Write down your separation date and the date of any divorce judgment.
- Work out which of the three deadlines is earliest for you.
- Gather statements for bank accounts, RRSPs, pensions and debts.
- Note any property you think is excluded, and the proof you have.
- Speak to a family lawyer before any deadline passes, or promptly if one already has.
Frequently asked questions
How long do I have to claim equalization after my divorce?
The claim must be made by the earliest of two years after the divorce judgment, six years after separation with no reasonable prospect of resuming cohabitation, or six months after the first spouse's death. The earliest date controls, so check all three.
Does the six-year limit always apply?
No. If a divorce judgment is made, the two-year limit after that judgment may end sooner than the six-year limit. The earliest of the dates is the deadline.
Can I still claim if I missed the deadline?
A court may extend the time if there are apparent grounds for relief, the delay was in good faith, and no one will suffer substantial prejudice. Whether that fits your situation depends on the facts, so get legal advice.
Does a separation agreement help?
It can be a way to deal with property. A separation agreement may cover property, support and parenting, but it is unenforceable unless it is written, signed by the parties and witnessed. A court may set it aside in some cases, such as when significant assets were not disclosed.
Sources
- Family Law Act, R.S.O. 1990, c. F.3, ss. 1(1), 4(1) — Ontario e-Laws
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