Property Rights and Obligations of Married and Co-habiting Partners January 19, 2012 12:00pm – 1:00pm - PowerPoint PPT Presentation

Presentation Transcript

METRAC Webinar

Property Rights and Obligations of Married and Co-habiting Partners

January 19, 2012

12:00pm – 1:00pm

METRAC 158 Spadina Road, Toronto ON, Canada

www.metrac.org | info@metrac.org | Phone 416-392-3135

METRAC

METRAC, The Metropolitan Action Committee on Violence Against Women and Children, is a not-for-profit, community-based organization that works to prevent and end violence against women, youth, and children, across diverse communities.

METRAC’S Community Justice Program provides accessible legal information, education, and training for women and service providers. It examines how legislation and legal practices affect women from diverse backgrounds and especially those experiencing abuse or violence.

www.METRAC.org

FLEW, The Family Law Education for Women campaign

information on women’s rights and options under Ontario family law

available in 14 languages, accessible formats, online and print

www.OneFamilyLaw.ca

Phone: 416-392-9138

METRAC Youtube: http://www.youtube.com/user/metracorg

METRAC Facebook: http://www.facebook.com/metracorg

METRAC Twitter: http://www.twitter.com/metracorg

Robert Halpern

Family Law Specialist, Torkin Manes LLP, Toronto

Author of Property Rights and Obligations under Ontario Family Law

Presenters

Tamar Witelson

Legal Director, METRAC

Ontario Family Law Act, R.S.O. 1990, CHAPTER F.3

applies to married spouses, both opposite and same sex
guiding principles:

marriage is an equal partnership
assumes each spouse contributes equally to household, child and financial responsibilities

result: each spouse entitled to
equal share of family assets/debts
at marriage breakdown

Division of Family Property in Ontario

applies to the increase in couple’s property that occurred during the marriage

deducted: property (minus debts) that each spouse owned on the date of marriage (except the Matrimonial Home)
excluded: gifts that each spouse personally received during the marriage (except the Matrimonial Home)
calculate Net Family Property for each spouse: total assets minus total debts for each spouse at end of marriage
asset examples:

businesses, real estate (land, cottages, secondary or rental properties), furnishings, bank accounts, pensions, cars

debt examples:

mortgages, bank loans, car loans, credit card balances, unpaid income taxes

Equalization Payment

calculation of Equalization Payment:

higher Net Family Property (spouse 1) minus lower Net Family Property (spouse 2)
divide the difference by two (equals $X)
spouse 1 pays half the difference ($X) to spouse 2

Domestic Contracts: spouses can agree to exclude specific property from the equalization calculation
violence or abuse: get legal advice before signing any agreement about division of family property

Equalization Payment (Cont’d)

“Matrimonial Home” is the home ordinarily occupied by the spouses as the family residence at the time of separation

there are special rules for the
Matrimonial Home in the
equalization calculation
the Matrimonial Home is included in the
property calculation of the spouse(s)
whose name is on the deed
if the Matrimonial Home was owned by
one spouse before the marriage, it is NOT deducted from that spouse’s
Net Family Property

Matrimonial Home

if the Matrimonial Home was a gift to one of the spouses during the marriage, it is NOT excluded from that spouse’s Net Family Property

the value of the Matrimonial Home at separation must be included in the calculation of the Equalization Payment
both spouses have a right to live in the Matrimonial Home unless and until there is a court order or agreement to the contrary

locks cannot be changed by one party without a court order or agreement to the contrary

property cannot be sold without both spouses’ agreement

Matrimonial Home (Cont’d)

Robert Halpern

Presenters

Tamar Witelson

The Family Law Act rules for division of property do NOT apply to common law or cohabiting partners

The Family Law Act does apply to common law partners for spousal support
in Ontario, “Common Law” partners for support purposes are defined as spouses who have lived together for at least three years or have a child together and lived together in a relationship of some permanence

Common Law or Cohabiting Partners

the courts have made rules for the division of property between unmarried cohabiting partners

factors the court considers:

long relationship
integrated finances
cooperation in running the household
cooperation raising children
leaving school or workforce for family
moving for one partner’s career

the court may order one partner to pay money to the other or divide ownership of some family property between partners

Common Law or Cohabiting Partners (Cont’d)

Surviving Spouses

if wife or husband dies before his/her spouse, the surviving spouse has a choice regarding family property:

if there is a will, accept the bequest of property according to the will, OR
if there isn’t a will, accept the assignment of property according to the rules for intestacy (no will), OR
choose division of property according to the equalization calculation.