Tips & Information on Division of Property in Ottawa
Property is Divided when Your Relationship Ends
When you are living together with someone and one of you decides that the relationship is over with no chance of reconciling, you are considered to be separated even if you are still living together in the same home. When this happens your property may be divided, depending on your situation.
If you are married, each person in the marriage is recognized as an equal partner whether he or she is the breadwinner or works in the home. The law provides that the value, after debt, of all property acquired by both spouses during the marriage and still existing on the day of separation must be divided equally between the spouses. Also, any increase in the value of property owned by a spouse at the date of marriage must be shared. This can include pension plans from work, your savings, RRSPs and the family home. The payment that may be owed to one of the spouses in order to effect this sharing is called an equalization payment, which is an equalization of net family property.
There are some possible exceptions to these rules, which are called excluded property, and may include gifts or inheritances received during the marriage from someone other than a spouse, provided that the gifts or inheritances were not used towards the purchase of a matrimonial home.
If you are in a common-law relationship, you are not entitled to an equalization payment, but you may be entitled to a payment from your common-law spouse to pay you back for a direct or indirect contribution to property that he or she owns or if you and your partner acted together as a “joint family venture” throughout the relationship. These claims are referred to as trust claims or unjust enrichment claims.
The family or matrimonial home is treated by the law in a special way. It is where you live and where your children feel most comfortable. If you own your home, it may be the most valuable asset you have.
If you are married, both of you have an equal right to stay in your home unless a judge decides that one of you must move out. There is no such right if you are a common-law spouse.
If you are married, both of you have a right to stay in your home, so neither of you is allowed to sublet it, rent it, sell it or mortgage it without the other’s permission. This is true even if only one of you owns the home.
When you separate, both of you may want to stay in the family home. If you cannot agree on who should stay in the family home, you can negotiate with the help of lawyers, a mediator or an arbitrator, or you may have to go to court to have the judge decide. An order or agreement for exclusive possession allows one spouse to stay in the home while the other one has to leave and not return.
It may be that, after the separation, neither of you will be able to afford to stay in your home in which case you can agree to sell it or have a court order that it be sold.
If you have children, the person who has custody of the children will most often be the one who stays in the family home with the children if it is best for them. It may help the children adjust more easily to their new family situation in a place and neighbourhood that they know.