What the Family Law Act Covers for Separating Ontario Couples

When a relationship ends, you will hear the name Family Law Act early and often. It is the Ontario statute that sits behind many of the money and property questions couples face, including how property is divided and what a surviving spouse can claim.

This article gives you a plain overview of equalization, support and the matrimonial home, and explains how this law differs from the federal Divorce Act. It is general information, not advice on your own situation.

How the Family Law Act differs from the Divorce Act

The Divorce Act is federal law and deals with ending a marriage. In Ontario, only the Superior Court of Justice hears divorce, while the Ontario Court of Justice does not hear divorce or property claims. The Family Law Act is an Ontario statute. It is the source of the survivor's right to claim half the difference in net family property when a married spouse dies.

The two laws overlap in practice. Parenting, child support and spousal support can be heard in both the Superior Court of Justice and the Ontario Court of Justice. Property division, matrimonial home claims and divorce are decided in the Superior Court of Justice.

The Divorce Act also asks parties to try to resolve matters outside court, such as through negotiation, mediation or collaborative law, to the extent that is appropriate.

Property equalization for married spouses

Equalization is a calculation, not a split of each item. Each spouse values the property they own on the separation date, less debts and excluded property, and then subtracts the net property they owned on the marriage date. The spouse with the larger net family property pays half the difference as the equalization payment, and a negative share counts as zero.

Some property is not shared. Gifts and inheritances (other than the family home), life insurance proceeds received because someone died, personal injury money, and property excluded by agreement are all outside the calculation.

There is a time limit. A court claim for an equalization payment must be started within six years of separation or two years after the divorce is final, whichever comes first.

Common-law couples are treated differently. They are not legally required to split property acquired while living together, though they may recover contributions to the other's property, sometimes through court.

The matrimonial home

The family home gets special treatment. Its full value must be shared even if it was owned before the marriage, gifted or inherited. A court can divide it differently only in very special situations where an equal split would be extremely unfair.

A married spouse can also ask the court for exclusive possession of the family home, even if it is in the other spouse's name. The judge considers violence (including against children), whether the spouse has another suitable place to live, the children's best interests and both spouses' finances.

Unmarried partners are not given the same right to seek exclusive possession in Ontario's guidance, which tells them to see a lawyer about their rights to the shared home.

Support and claims after a death

When a married spouse dies, the survivor has choices. The survivor can claim half the difference in net family property under the Family Law Act, take what the will gives, or, if there is no will, take their share under the Succession Law Reform Act.

To claim equalization, the survivor must file the Election of Surviving Spouse form with the Estate Registrar for Ontario (c/o Toronto Estates Office, Superior Court of Justice) no later than six months from the spouse's death.

Dependants can also ask the court for support out of the estate. Under section 58(1) of the Succession Law Reform Act, this applies if the deceased, with or without a will, did not make adequate provision for the proper support of dependants. Section 61(1) sets a six-month limitation period for that claim. Because these deadlines are short, it is worth getting advice quickly.

What to do next

• List what each of you owned on the date of marriage, the date of separation and today, along with debts.
• Note the separation date and any divorce date, since the equalization deadline runs from them.
• Gather documents about the family home, including who owns it and who lives there.
• Visit a Family Law Information Centre at your family court for information and mediation referrals.
• Talk to a family lawyer before signing any agreement.

Parties must attend a Mandatory Information Program session before their first appearance or case conference, and no later than 45 days after the case starts, unless an exception applies.

Frequently asked questions