Family Law Expertise for Property Division & Equalization

No. Married spouses are entitled to an equalization of net family property, the spouse with the higher net worth pays the other half the difference between their respective net family properties. Common-law couples are not automatically entitled to a division of property accumulated during cohabitation. Property is generally divided based on title or ownership: if an asset is in one party's name, it belongs to them, and the other party has no automatic right to share in it or its growth in value.

Property is defined broadly, and includes:

• Both tangible and intangible assets
• Options, whether vested or not
• Money owed to you
• Collectibles (art, cards, and similar items)
• Property owned jointly with others
• Rights to receive something in the future, even if payment is on a later date

Certain property is not included when calculating a spouse's net family property:

• Property (other than a matrimonial home) acquired by gift or inheritance from a third person after the date of marriage
• Income from that gifted or inherited property, if the donor expressly stated it should be excluded
• Damages, or the right to damages, for personal injury
• Proceeds, or the right to proceeds, of a life insurance policy
• Any property (other than a matrimonial home) that these excluded funds can be traced into
• Property the spouses agreed to exclude in a domestic contract
• CPP credits, which are usually divided separately

When calculating net family property, each spouse can deduct the value of property they owned on the date of marriage, along with any debts or liabilities they had at that time. In practice, this means you generally only divide the increase in value of property that occurred during the marriage, with one major exception: the matrimonial home.

The matrimonial home receives special treatment under the Family Law Act. Unless a marriage contract says otherwise, the home cannot be excluded from net family property, even if one spouse inherited it or owned it before the marriage, and its date-of-marriage value or mortgage cannot be deducted. The full value of the home is generally divided between the spouses.

Net family property is the value of everything a spouse owns on the valuation date, minus their debts and other liabilities, and minus the value of property (other than a matrimonial home) they owned on the date of marriage, after deducting date-of-marriage debts and liabilities (other than those tied to acquiring or significantly improving a matrimonial home).

The valuation date is the earliest of the following:

• The date the spouses separate with no reasonable prospect of resuming cohabitation
• The date a divorce is granted
• The date the marriage is declared a nullity
• The date one spouse commences a successful application based on improvident depletion of assets
• The date before one spouse dies, leaving the other surviving

Courts look beyond the address and examine how the couple actually lived: whether they maintained separate finances and bedrooms, stopped presenting themselves as a couple socially or to family, stopped sharing meals or household responsibilities, and whether one spouse communicated a clear intention to end the relationship. No single factor is decisive; the court weighs the whole picture. Because this determination can significantly affect the equalization payment, it's worth discussing your specific circumstances with a lawyer early.

Yes, in some exceptional circumstances when an equal division would be considered unconscionable. Courts enforce a stringent test which can be met in situations such as:

• A spouse failed to disclose debts that existed at the date of marriage
• A spouse incurred debts recklessly or in bad faith, reducing their net family property
• Part of a spouse's net family property consists of gifts made by the other spouse
• A spouse recklessly or intentionally depleted their assets
• The amount a spouse would receive is disproportionately large relative to a period of cohabitation under five years
• One spouse incurred a disproportionately larger share of debt for the support of the family
• There is a written agreement between the spouses that isn't a formal domestic contract
• Other circumstances relating to the acquisition, disposition, preservation, maintenance, or improvement of property justify an unequal division

Common-law spouses often contribute to acquiring, maintaining, and improving property just as married spouses do through money, housekeeping, or hands-on work like accounting, sales support, or trades work on the home. If property were divided strictly by legal ownership, the non-owning spouse could be left with nothing despite those contributions. An unjust enrichment claim addresses this unfairness. To succeed, the claimant must show an enrichment to the owner, a corresponding deprivation to the non-owner, and no legal reason for the enrichment.

A joint family venture exists where both spouses contributed to building wealth during the relationship, even if most or all assets are held in one spouse's name. It can form the basis of an unjust enrichment claim where the claimant can connect their contribution to the venture with the wealth that was accumulated. Courts weigh four factors in determining whether a joint family venture exists:

1. Mutual effort
2. Economic integration
3. Actual intent
4. Priority of the family

Remedies can be monetary, or where money isn't an adequate remedy, the court can impose a constructive trust. In some cases, a resulting trust may be found where one party provided the value for property that is titled in the other party's name. Importantly, a successful trust claim does not automatically entitle a party to half the value of the property; the court makes that determination separately.