Mediation for Property Division in Ontario Separation

If you and your spouse are separating and want to stay out of a long court fight, mediation may be an option. A neutral mediator helps you talk through the issues and look for a deal, rather than deciding for you.

This article explains where mediation is available in Ontario, what it can cover when it comes to property and the family home, and how an agreement reached in mediation becomes something you can rely on. It is general information; a lawyer can look at your own facts.

What you are trying to resolve

For married spouses, the starting point is that property acquired during the marriage is generally split equally, and the spouse with the smaller share is owed an equalization payment. The family home is a special case: it must be divided equally unless the spouses agree to a different split, and a gifted or inherited family home does not count as excluded property.

For common-law couples, there is no legal requirement to split property acquired while living together, but a partner who contributed to property the other owns may have a right to part of it. Mediation is a place to sort out these questions without a judge, as long as both people take part honestly.

Where mediation is available and what it costs

Court-connected family mediation can help with parenting issues, child and spousal support, and property division. Private mediators also offer family mediation in communities.

Cost is not only money. Courthouse mediation on the day of a court appearance can feel rushed, so prepare your numbers beforehand. Family Law Information Centres in family courts across Ontario can give you information about alternative dispute resolution, and coordinators can tell you about family mediation.

Getting ready for a property mediation

Mediation works best when both people have the same information. A mediator helps you talk; a mediator does not usually verify your finances for you. Gather your documents before you sit down.

• Statements for bank, investment and retirement accounts.
• Mortgage statements and any recent estimate of the home's value.
• A list of debts, including credit cards and lines of credit.
• Records of property you owned before the relationship or received as a gift or inheritance.
• A short list of what matters most to you, such as keeping the home or a timeline for a sale.

It is also sensible to see a lawyer before you mediate, so you know roughly what the default rules would give you. Otherwise it is hard to judge whether a proposed compromise is fair.

How a mediated deal becomes binding

To be dependable, the deal should be written up as a domestic contract, such as a separation agreement. For a marriage contract or cohabitation agreement, Ontario says both parties must sign in front of a witness, and the witness must also sign. A lawyer can confirm the signing steps that apply to a separation agreement.

Be careful about what you sign. A court may set aside a domestic contract if a party failed to disclose significant assets, debts or other liabilities, or did not understand the nature or consequences of the contract. Complete disclosure in mediation and a lawyer's review of the final document both help protect the deal.

If you agree to move the family home to one spouse, there are also land registry steps. A transfer or mortgage of a matrimonial home requires a spousal statement, for example that the spouse has released rights by separation agreement, or a court order. Your lawyer can handle this as part of closing the deal.

Watch the deadlines and next steps

For married spouses, the time limit for property claims is six years from separation or two years from the day the divorce is final, whichever comes first. If talks drag on, ask a lawyer how your deadline is affected.

• Contact the Family Law Information Centre at your local family court for information on mediation.
• Decide whether courthouse, sliding-scale or private mediation suits your timeline and budget.
• Collect your financial documents before the first session.
• Have a lawyer review any agreement before you sign it.

Frequently asked questions