- An equalization application cannot be brought after the earliest of three dates: two years after divorce, six years after separation, or six months after the first spouse's death.
- A court may extend a Family Law Act time limit, but only if there are apparent grounds for relief, the delay was in good faith, and no one suffers substantial prejudice.
- Common-law partners are not covered by equalization, so their property claims work differently and are worth raising with a lawyer early.
You separated some time ago, and sorting out the property kept slipping down the list. Now you are wondering whether you have waited too long to claim a share of what was built up during the marriage.
Ontario puts time limits on property claims between spouses. This article explains how the main limit works, which events start the clock, and what may be possible if a deadline has already passed.
What an equalization claim is
When married spouses separate, the spouse whose net family property is smaller is entitled to one-half of the difference between the two net family properties. Net family property is the value of what a spouse owns on the valuation date, after deducting that spouse's debts and other liabilities.
The valuation date is the earliest of several dates, the first being the date the spouses separate and there is no reasonable prospect that they will live together again. If the spouses cannot agree on the payment, it is claimed by a court application, and that application has a deadline.
The deadline: three possible cut-off dates
An application for equalization cannot be brought after the earliest of three dates.
| What happens | Time limit |
|---|---|
| The marriage ends by divorce or judgment of nullity | Two years after that day |
| The spouses separate with no reasonable prospect of resuming cohabitation | Six years after that day |
| One spouse dies | Six months after the first spouse's death |
Because the earliest date applies, the six-year limit is not always the one that matters. If you have divorced, the two years from the divorce may run out first, and if a spouse has died, the six months after the first death may be the limit.
Why the separation date matters so much
Both the valuation date and the six-year clock depend on when there was no reasonable prospect of the spouses living together again. Couples do not always agree on that date, especially if they stayed in the same home or tried to reconcile.
That makes it worth pinning down your own date early, and keeping the records that support it. A lawyer can tell you how your particular facts are likely to be viewed.
What if the deadline has passed?
A court may, on motion, extend a time limit in the Family Law Act if there are apparent grounds for relief, the delay was incurred in good faith, and no person will suffer substantial prejudice. An extension is not automatic, and all of those conditions matter.
Spouses can also settle property by agreement. A separation agreement is unenforceable unless it is in writing, signed by the parties and witnessed. A court may set aside a separation agreement if a party failed to disclose significant assets, debts or other liabilities.
If you are common-law partners
Equalization is a remedy for married spouses. Ontario's guidance says common-law couples are not legally required to split property acquired while living together, and items generally belong to whoever bought them.
A partner who contributed to the other's property may need to go to court to recover that contribution.
What to do next
- Write down the date you separated and the facts showing there was no reasonable prospect of getting back together.
- Note whether a divorce has been granted, or whether either spouse has died.
- Gather statements, deeds, loan records and other proof of what each of you owned and owed.
- Speak with a lawyer soon if any of the three time limits may be close or already past.
- Consider a Family Law Information Centre for general information about separation and divorce.
Frequently asked questions
How long do I have to make an equalization claim in Ontario?
The application cannot be brought after the earliest of two years after the marriage ends by divorce or judgment of nullity, six years after the spouses separate with no reasonable prospect of resuming cohabitation, or six months after the first spouse's death. Which one applies depends on your situation.
Can I still claim if I missed the deadline?
Possibly. A court may extend a time limit if there are apparent grounds for relief, the delay was incurred in good faith, and no person will suffer substantial prejudice. Whether you meet those conditions depends on your facts.
Does getting divorced shorten my time?
It can. The two years after the day the marriage ends by divorce is one of the three cut-off dates, and the earliest of the three applies.
Do common-law partners have the same deadline?
No. Equalization is for married spouses. Common-law couples are not legally required to split property, and a partner who contributed to the other's property may need to go to court to recover it.
Sources
- Family Law Act, R.S.O. 1990, c. F.3 (e-Laws) — Ontario e-Laws
- Ontario.ca – Dividing property when a marriage or common law relationship ends — ontario.ca
- Ontario.ca – Family Law Information Centres — ontario.ca
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