Time Limits to Claim Equalization in Ontario

Many people separate and then put the property question aside for months or years. That can be risky, because Ontario sets deadlines for equalization claims and missing one can complicate or end your right to claim.

This article sets out the time limits that apply to married spouses, how they are counted, and what to do if you are close to a deadline or have already passed it.

The deadline for an equalization application

Under the Family Law Act, an equalization application must be brought by the earliest of three dates:

Because it is the earliest date that counts, a couple who separate and later divorce may find the two-year divorce deadline arrives before the six-year separation deadline would have. Check each date carefully, rather than assuming you have the longest period.

When the clock starts

Separation for these purposes means separation with no reasonable prospect of resuming cohabitation. The same concept sets the valuation date, which is the earliest of five dates, including that separation date, the date a divorce is granted, and the day before a spouse dies.

Spouses sometimes disagree about when they separated, especially if they lived under the same roof for a while. That date can affect both the deadline and the value of property, so keep records such as messages, moving dates, lease or bill changes and anything that shows when the relationship ended.

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 the difference. The deadline is short: six months after the first spouse's death. The entitlement is personal between the spouses. If you are a surviving spouse, get advice quickly, because the estate and the will may also affect your options.

Missing the deadline and protecting your position

A 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 not automatic, and you should not count on it. The longer the delay, the harder it can be to show these things.

In an equalization or title application, a court may make interim or final orders restraining the depletion of a spouse's property, often called preservation orders. A person entitled to an order for payment of money can claim prejudgment interest from the date the cause of action arose to the date of the order, and postjudgment interest runs from the date of the order. The court may disallow interest, allow a higher or lower rate, or allow interest for a different period where it is just. Rates change, so check the current ones.

• Write down your separation date and the evidence for it
• Note any divorce date, because it may start a shorter deadline
• Gather statements for the valuation date, since disclosure is required
• Ask a lawyer whether an application should be started now

Common-law partners and other claims

Equalization applies only to a spouse as defined in the Act, which covers people married to each other or who entered a void or voidable marriage in good faith. It does not include unmarried cohabitants. Common-law couples are not legally required to split property acquired while living together; property belongs to whoever bought it, but a partner who contributed to the other's property may have a claim, which may require going to court.

Time limits for those other claims differ from the equalization deadline, so do not assume the periods above apply to them. Support is a different matter: unmarried partners can have support rights if they meet the Act's definition, but that does not give equalization rights. Get legal advice promptly to confirm the deadlines that apply to you.

Frequently asked questions