Time Limits to Start a Property Claim After Separation in Ontario

After a separation, it is easy to let the property question sit while you sort out housing, children and day-to-day money. But Ontario sets deadlines for starting an equalization claim, and they can pass while you are waiting to see how things settle.

This article explains the deadlines in the Family Law Act, how to tell which one applies to you, and what may be possible if you are late. It is general information, and a lawyer can confirm the dates in your situation.

The deadline for an equalization application

An equalization application must be brought by the earliest of three dates:

Because it is the earliest date that counts, a divorce can shorten the time you thought you had. If you separated four years ago and a divorce was granted last month, the two-year period from the divorce is likely to be the one that matters, since it is the earlier of the dates.

Separation is judged by the facts

The separation date is when spouses separate with no reasonable prospect of resuming cohabitation. That same event is one of the five possible valuation dates, and the valuation date is the earliest of them: separation with no reasonable prospect of resuming cohabitation, the date a divorce is granted, the date the marriage is declared a nullity, the date a spouse starts a successful improvident-depletion application, or the day before a spouse dies.

Spouses sometimes disagree about when they separated, for example if they lived under one roof for a time. If the date is unclear, the safest approach is to plan around the earliest date that could reasonably apply and to talk to a lawyer promptly.

If a spouse has died

If a spouse dies and the deceased's net family property is larger, the surviving spouse is entitled to one-half of the difference. The entitlement is personal between the spouses. The deadline can be as short as six months after the first spouse's death, so it is worth getting advice quickly, including on how this interacts with a will.

What if you have missed the deadline?

Missing a deadline does not always end the matter. The court may extend a time limit under the Act if there are apparent grounds for relief, the delay was incurred in good faith, and no one will suffer substantial prejudice because of the delay.

That is a discretion, not a right. Whether it would be available depends on why you were late and what the other side can show. A lawyer can tell you whether it is worth asking.

Common-law partners are in a different position. Equalization applies only to a spouse as defined in the Act, and that does not include unmarried cohabitants. A partner who contributed to the other's property may have a claim, which may require going to court. The time limits for those claims are different from the equalization deadline and should be checked separately.

What to do next

If you are within a year or two of separating, treat the deadline as real even if talks are going well. Whether settlement discussions affect the deadline depends on your situation, so it is worth confirming with a lawyer rather than assuming the time is paused. The deadline is set by the dates in the Act, and a late start depends on the court's discretion to extend time.

• Write down your date of marriage, your best estimate of the separation date and the date of any divorce.
• Count forward to each possible deadline and mark the earliest one.
• Gather your account and investment statements closest to the valuation date, since supporting documents are due within 30 days after the financial statement is due.
• Remember that a property claim is made with a financial statement, which for property claims is Form 13.1.
• If you worry assets are being run down, ask about an order restraining depletion of property.
• Speak with a lawyer early, especially if the deadline is near or has passed.

Frequently asked questions