Feldstein Family Law Group

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FAQs - Division of Assets & Property

Who decides how to divide our property?

There are many people who can decide how to divide your property: you and your spouse, an arbitrator, or the courts.

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What is “equalization” and how is it calculated?

Equalization is the process whereby the courts divide the difference between the net family properties of the separating or divorcing spouses and award one-half of that difference to the spouse who has the lower net family property.

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Is division of property / assets always 50/50?

Normally, the division of property is 50/50 increased value during the marriage based on the equal partnership rationale. However, there are certain situations contemplated in s. 5(6) which allow the court to order an amount that is either more or less than one-half the difference between the net family properties.

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I think my spouse is spending our money recklessly and extending our line of credit. Is there anything I can do to stop him/her?

Yes there is. You can bring an application under s. 7(1) for equalization of property pursuant to s. 5(3) due to the improvident depletion of your spouse’s net family property.

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My parents gave us significant money for our down payment on our home. Can I get that back?

It depends on the status of your relationship.

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We were never married, but have lived common-law in a home that I purchased after we had lived together. Is the house mine?

Yes, the house is yours but beware because if your common law spouse contributed to the preservation or maintenance of that property through either financial or non-financial means (i.e. cooking, cleaning, etc.) then he or she may have a claim for unjust enrichment, constructive trust or a resulting trust.

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Can pensions and RRSPs be divided?

Generally they can be divided as per the s. 4(1) definition of property which states that it consists of any interest (contingent or vested, future or present) in real and personal property.

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We have been separated for almost six years. Can I still get an equalization payment?

Yes, but beware of the fact that this may be your last year to apply to the court for an equalization payment.

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Andrew Feldstein is a regular contributor to The Huffington Post Canada. The Huffington Post

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