How to Figure Out Property Claims in Your Separation or Divorce in Ontario-Part One!
Property rights and claims in family law is probably one of the most misunderstood areas of family law.
I am starting a series of videos that make sure that you understand the fundamentals of making a property claim in your separation or divorce. You will no longer have to scratch your head about property issues in your separation or divorce in Ontario.
Hi, my name is Thomas O’Malley. I’m an experienced family lawyer in Durham Region and the GTA.
Who Can Apply For A Property Claim?
You can only make a property claim under the Ontario Family Law Act when you are married to your spouse. This is called a claim for what is called an equalization payment.
People who live common-law or who are not married cannot make a property claim under the Family Law Act for an equalization payment. They have a more difficult claim for property based on the concept of constructive trust, resulting trust and unjust enrichment which will be discussed later.
Time Limits For A Property Claim Application
You face an important time limit on making a property claim application under the Ontario Family Law Act. You must bring a property claim application before the earliest of,
(1) two years after the day the marriage is terminated by divorce or judgment of nullity;
(2) six years after the day the spouses separate and there is no reasonable prospect they will resume cohabitation;
(3) six months’ after the first spouse’s death.
You have to make sure you make an application to deal with your property claim before the time limit expires.
If you make an application for your property claim and the time limit has expired, the court will not let you proceed with your property claim. Check your separation date now to make sure that you still have time to make your property claim.
The Legal Formula For Your Property Claim
There is a specific legal formula to determine your property claim under the Ontario Family Law Act.
The specific legal formula is the following:
“When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them.”
This legal formula involves these steps: (1) you and your spouse have to calculate or figure out your individual net family property (the concept of net family property will be discussed shortly), (2) the spouse whose net family property is less than the net family property of the other spouse will receive one-half the difference in the value between the two net family property values.
For example, if your spouse has a net family property of $120,000 and your net family property is $100,000, your spouse would owe you $10,000. The $10,000 amount is calculated by deducting $100,000 from $120,000 which equals $20,000.
Then you divide $20,000 by 2 which equals $10,000. By paying you $10,000, your spouse’s net family property will be $110,000 and your net family property will be $110,000.
The payment of $10,000 to you will equalize the net family property between you and your spouse. This is why the $10,000 payment is called an equalization payment.
Watch for next video on this important topic in your separation or divorce.
Make sure you spend some time with your family lawyer discussing this important issue in your separation or divorce.
If you have any questions about your separation, divorce or family law case and you would like our help, there’s a few ways to contact our office. You can leave a message on my Facebook law office page, visit my website at www.canadiandivorcelegaladvice.com, or call me directly at 905-434-8837. We would be happy to speak to you.
Oh, by the way, did you know you can protect your family law rights and get essential information on settling your family law issues with your former spouse with the daily indispensable family law advice and tips at my FREE Facebook group?
Click here to find out more: Durham Region Separation and Divorce Legal Support Group
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