How is property determined? Which is marital and which is separate?

Let us assume that by “marital property”, we deem property that is subject to division on a relationship breakdown.

In Ontario family law, there is no presumption that parties who are not married but live together will get to share in the value of property held by the other on the breakdown of the relationship. In order for one party to successfully claim an interest in the value of the property held by the other, the party making the claim must show contribution to the acquisition or increase in value of the property. This contribution may take the form of direct financial contribution, such as payment of all or part of the purchase price or payment towards property improvement, or may be indirect, such as contributing services to the upkeep or maintenance of the property. The contribution results in a trust interest being created for the non-titled party, which will enable that party to claim a share in the value of the property upon breakdown of the relationship.

For married parties, unless there is a marriage contract that specifies otherwise, the Family Law Act stipulates that the value of almost all property accumulated during the marriage is subject to equalization or division, regardless of which party is on title. However, the value of property accumulated prior to the marriage, with the exception of the matrimonial home, will not be subject to division on separation. The value of all gifts or inheritances obtained by one party during the marriage will also not be subject to division. Damages or right to damages for personal injuries also will not be subject to property division. Finally, the proceeds of a policy of life insurance that are payable to one spouse will not subject to matrimonial property division.

“Property” under the Family Law Act is defined broadly and includes such items as employment pensions, real estate, investments, household items, stock options, etc.

Ken Nathens, Family LawyerKen Nathens is a partner in the law firm of Nathens, Siegel LLP, a Toronto law firm restricted to family law matters. Ken has experience in all aspects of divorce and family law and devotes much of his time to assisting clients with custody and access dispute. He can be reached at (416) 222-6980. View his firm’s Divorce Magazine profile.

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