When a couple separates, how their property gets divided is different for married couples than it is for unmarried spouses. Couples that are married have to equally divide the value of all of what they own and what they owe, but unmarried spouses do not. The most important differences between married and unmarried spouses concern how the law deals with the home where you live, your property, and your debts.
The following table summarizes the differences between financial rights when a marriage ends and when unmarried spouses split up.
|Unmarried Spouses||Married Spouses|
Division of Property
Any house that the couple lived in together at the time of their separation
|Debts and Loans||
|Canada Pension Plan (CPP) Benefits||
Rights to the home where you live
A matrimonial home is any property that a couple lives in and that both spouses are using when they separate. A matrimonial home is a home someone owns. Laws dealing with the matrimonial home don't apply to homes that a couple rents. What happens to the matrimonial home depends on whether the couple is married or unmarried.
What married couples need to know about the matrimonial home
If the couple is married, each spouse has a right to half the value of the matrimonial home. This is true even if only one spouse's name is on the deed, or if one spouse bought the home before the couple got married.
When a marriage ends, both spouses have equal rights to live in the matrimonial home. This means that you can't be kicked out of your house because you're separating
If you can't agree about who should live in the house after you separate, you can ask the court to decide for you. When making a decision about who will live in the home, a judge can consider the following things:
- How much money each spouse has
- If the couple has any written agreements about the house
- What is best for the children
- If there are other places for the spouses to live
- If there is a history of domestic abuse
One spouse can't sell the matrimonial home without permission from the other spouse. One spouse can't take out a mortgage or lease on the matrimonial home without permission from the other spouse. If they do either of these things, the court can rule that the deals were illegal.
A couple can have more than one matrimonial home if they spend a lot of time at the property as a family. For instance, a cottage may be a matrimonial home if the spouses spent a lot of time there as a family before they separated.
If a couple can't agree on what is a matrimonial home, you can ask the court to decide.
Property stops being considered a matrimonial home when a couple gets divorced. If you own a home you should settle questions about how to divide property before you get an official divorce
What unmarried couples need to know about the matrimonial home
If the couple is not married, the matrimonial home belongs to the person whose name is on the deed. If a couple has a cohabitation agreement, it should say who can live in the home and how the value of the home will be divided. The couple must follow what the agreement says, as long as the agreement is legal.
If you are in an abusive relationship, you may be able to stay in your home even if your name is not on the deed. To do this, you must apply for a restraining order that says your abuser must stay away from the property and that you are allowed to live in the home. It is very difficult to get this type of order. If you are in this position you should talk to a lawyer.
What couples living on-reserve need to know about the matrimonial home
If you live on a First Nation reserve, Ontario laws about the matrimonial home do not apply. Instead, the law that applies is The Indian Act. The Indian Act doesn't mention anything about how to divide property when a relationship ends. This means that married people living on reserve don't automatically have a right to half the value of the matrimonial home.
The inherent rights to land of Indigenous peoples are not accurately reflected in the Canadian Legal system. The federal government has said it will change the laws that affect the property rights of people living on-reserve and will allow First Nations to pass their own laws about owning and dividing land and houses on their territories.
For more information about property laws on-reserve in Ontario, contact the Aboriginal Legal Services of Toronto at (416) 408-3967 or at www.aboriginallegal.ca or The Ontario Native Women's Association at 1-800-667-0816 or at www.onwa-tbay.ca
Responsibilities for debts and loans
Whether you are married or unmarried, you are responsible for the debt you accumulate in your name, or the debt that you accumulate jointly with someone in both your names.
If you're married the amount of debt you owe is subtracted from the total amount of your property value when you're calculating how to equally divide property at separation.
Running up large debts in a partner's name or in joint accounts, with or without their consent, is a common form of economic abuse. See Economic abuse in relationships.
Property rights for married couples
Property includes the money, pensions and disability benefits, real estate and other assets that the couple have.
If you are married:
- Property that you got during your marriage must be divided equally
- If your spouse owns property that is worth more than your property, they must give you half of the difference in value between their property and yours
- You can ask a court to make a decision about dividing the property. You must make the claim within 6 years after you separate and within 2 years after you get divorced.
The law says that married spouses must equally divide all of the property that the couple gained during marriage. It doesn't matter who paid for what, or whose name is on the deed for the property. Remember that the matrimonial home is divided equally even if someone owned it before the couple got married. See Rights to the home where you live.
However, an exception to the rule around matrimonial homes is if a spouse owned a home before marriage that is used as a matrimonial home during marriage and it is then sold before the relationship ends. If a matrimonial home is sold before the relationship ends, the spouse who owned it can then count the value of the home on the date of marriage as property they owned before they were married, and that value does not have to be divided equally.
It's helpful to know how to divide your property according to the law but it's not always necessary depending on how you choose to resolve your issues at separation.
To calculate how to equally divide your property according to the law, follow this two-step formula:
Step 1: Each spouse must calculate their Net Family Property (NFP).
To find this amount, each spouse must add up the value of everything they own. From this amount they must subtract the value of what they owned before they got married, their debts and any inheritances or gifts.
Step 2: The couple must calculate the equalization payment amount.
The equalization payment is a payment that the spouse with the higher NFP must make to the spouse with the lower NFP. The amount of the equalization payment is half of the difference between the higher and lower NFP.
When would an equalization payment be a different amount?
In special cases a court can order one spouse to pay more or less than the calculated equalization payment. This can happen if a judge believes that the equalization amount is extremely unfair, or if the couple signed a marriage contract or other agreement.
If you have a marriage contract or another agreement, the court will order you to follow what it says unless the contract is deemed to be extremely unfair. The court will not order you to follow an agreement that you were forced to sign. If you signed a contract because you were bullied, pressured or lied to, tell the court.
Here are the things a judge will consider when they decide whether an equalization payment is fair:
- One spouse didn't tell the other spouse about all their debts at the time of marriage
- One spouse accumulated debt by being reckless, or by purposely acting unfairly
- One spouse deliberately reduced their property, or spent their money, before the couple separated
- The NFP of one spouse includes large gifts from the other spouse
- The spouses lived together for less than 5 years and the equalization amount would give one spouse more than their fair share of the property
Property rights for unmarried couples
Property includes the money, pensions and disability benefits, real estate, and other assets that the couple owns. If you are not married:
- You don't automatically have a right to your spouse's property
- You can ask a court to order that your spouse give you some of their property, if you can show that what you did during the relationship made it possible for your spouse to get that property or your actions increased its value
- You must make a claim in court within 2 years after you separate
When an unmarried couple separates, each spouse keeps the property they brought into the relationship and anything they bought while they were part of the couple. The only property that is divided equally is assets that list both spouses as owners.
If a couple has a cohabitation agreement, the property will be divided according to what the agreement says. Couples can also write a separation agreement about how to divide the property. See Writing a Separation Agreement.
What happens if you can't agree?
If a couple cannot agree about how to divide property, they can go to court and ask a judge to decide. You can ask a court to help divide your property if:
- You can't agree about how to divide something you and your spouse bought together
- You and your spouse planned to share property that was only in one person's name
- The property is in your spouse's name, but you made it possible for them to buy it and you suffered financially because of this
- The property is in your spouse's name, but you helped add to the value of that property, and you suffered financially because of this
You should be able to get some of the value of property that is in your spouse's name if you can show how work that you did helped your spouse to get richer i.e you contributed to your spouse's business or supported them while they were in school or advancing their career.
Women's work in the home, including caring for children, is one thing that makes it possible for many couples to get richer. The court often recognizes this work, but fighting for this in court can be a long process and can cost a lot of money.
If you think you might have a right to some of the value of your spouse's property, talk to a lawyer. For information on how to find a lawyer see Where to get help when you need it.
Property rights for couples living on-reserve
The inherent rights to land of Indigenous peoples are not accurately reflected in the Canadian legal system. Ontario laws concerning the division of property do not apply to land or property on reserves. The Indian Act is the law that applies to land on-reserve. The Indian Act does not mention how to divide property when a relationship ends. This means that people living on First Nation reserves have no automatic rights to property and land when a relationship ends.
The federal government has said it will change the laws that affect the property rights of people living on-reserve and will allow First Nations to pass their own laws about owning and dividing land and houses on their territories. However, this promise has not been made into law.
For more information about property laws on-reserve in Ontario contact Aboriginal Legal Services of Toronto at (416) 408-3967 or at www.aboriginallegal.ca or The Ontario Native Women's Association at 1-800-667-0816 or at www.onwa-tbay.ca.
Rights to pensions
The value of a pension is considered property. For married couples, pensions must be included in the calculation of the Net Family Property (NFP). The value of the pension for NFP starts on the date that the couple got married and ends on the date of separation. A pension administrator will use these dates to calculate the value of the pension.
Spouses can decide how to divide the value of a pension in a marriage contract, a cohabitation agreement or separation agreement.
After separation, the amount of the divided pension can be paid to a spouse in regular installments or in a lump sum.
Canada Pension Plan (CPP) benefits
When a relationship ends, both married and unmarried spouses can ask to split their Canada Pension Plan (CPP) credits. The CPP credits that both individuals earned while married or in a common-law relationship are then combined and then split equally between the two people. Both married and unmarried spouses have to have lived together for at least 1 year to be eligible to split their CPP credits.
If you're ending a common-law relationship you have to wait 1 year after separating to request that your credits be divided, and you have to make your claim within 4 years after you and your spouse separate.
If you're married and separated you have to wait 1 year after separating to request that your credits be divided and there is no time limit after that for credits to be divided. If you're divorced you don't have to wait to request that your credits be divided and there is no time limit for credits to be divided.
The exchange of credits will be greater the longer a couple was together, and if one person earns a lot more than the other. If you have fewer CPP credits than your spouse, splitting them can be advantageous. If you have more CPP credits than your spouse, dividing them may not be to your advantage.
A CPP credit split application can be obtained from any Service Canada Centre at 1-800-277-9914 or TTY at 1-800-255-4786.
There is a 90-day time limit to appeal a decision about CPP credit splitting.
Couples may also be eligible to split credits from other types of pensions like pensions from private employers.
Rights and responsibilities for spousal support
Spousal support is an amount of money that one spouse pays to the other to help them become financially independent when the relationship ends. It is meant to make sure that both spouses share the financial effects of separating. Both married and unmarried spouses are responsible for paying spousal support.
The amount of support depends on what the dependent spouse needs and on what the wealthier spouse can pay. Spousal support can be one lump sum payment, or regular amounts paid over a set period of time, or an indefinite period of time. Both spouses must declare spousal support when filing their income tax. The spouse who receives support must declare it as income, and the spouse who pays support can claim it as a tax deduction.
Couples can make their own decisions about spousal support. If they do, their decision should be included in their marriage, cohabitation, or separation agreement. If the couple can't agree on spousal support, they can apply to family court and a judge will decide for them. Unmarried couples have 2 years from the date of separation to apply to the court for a spousal support order. There is no time limit for married couples to apply to courts for a spousal support order.
How courts calculate spousal support
When a couple asks the court to decide about spousal support, the judge will review their finances. Each spouse must bring papers showing their own financial situation. This information can include personal income tax returns, a pay statement, a social assistance statement or some other proof of their income, and a list of their assets and expenses.
When a couple goes to court to determine spousal support, here is what the judge will consider:
- How long the spouses were married or lived together
- How much each person earns or could earn
- Each spouse's age and how healthy they are
- How well one spouse could support the other's career
- What one spouse did to support the other's career
- How much time and effort each spouse put into caring for the children during the relationship
- How each spouse's responsibilities in the relationship affected their ability to earn an income
Usually the judge will not focus on other parts of the relationship. For example, if one spouse was abusive or unfaithful, these actions will not affect the amount of spousal support that the court orders.
To identify a reasonable amount of support, most judges and lawyers look at the Canadian government's Spousal Support Guidelines (SCG). These guidelines use a general formula to calculate support, and suggest for how long support should be paid for. The SCG suggest a range of amounts for judges to consider when they compare the difference between each spouse's gross income, and how long the spouses were married or living together. The greater the difference between the spouse's incomes and the longer a couple was married or lived together, the larger the spousal support amounts may be and the longer they must be paid. Every situation is different and judges decide spousal support by considering each specific case.
Spousal support orders can be changed after six months if either spouse's life has changed significantly. Below is a list of circumstances where you could ask for the support to change:
- If your income is much higher or much lower than when the order was first made
- If your spouse's income is much higher or much lower
- If either spouse remarries
- If either spouse retires
- If either spouse develops a disability and needs more support or one can pay less support
- If the cost of living has changed significantly since the support was ordered
Ontario laws say that child support is more important than spousal support. This means that if someone cannot afford to pay both child support and spousal support, they may only have to pay child support. After their duty to pay child support ends, they can then be ordered to pay spousal support.
Rights and responsibilities for child support
In Ontario, the laws about child support are the same for married spouses, unmarried spouses, and all parents of children whether or not the parents have ever been in a spousal relationship.
People who are not parents but who have shown over time that they intend to act like parents can also be held responsible for supporting children.
All parents must support their children until the children are 18 years old. If a child gets married or leaves the home, even if they are under 18 years old, parents are no longer responsible for supporting them. However, a judge could order a parent to support a child who is over 18 if the child is a full-time student, is sick, or has a disability.
The responsibility to support a child who is over 18 will depend on things like the relationship the child has with the payor and the financial situation of both the child and the payor.
Parents must support their children even if:
- They don't live with the children
- They aren't married to the other parent
- They never lived with the other parent
Adults who must support children can include:
- The biological mother or father
- A parent who has adopted a child
- A stepparent who has shown, over time, that they plan to act as a parent
- Another adult who has shown over time, that they plan to act as a parent
Parents who live with, and take care of the children have the right to child support from the other parent or parents. If the kids spend about an equal amount of time living with each parent, the parent with the highest income may have to pay child support to the other parent.
The amount of child support that a parent must pay is set by the Governments of Ontario and Canada in the Child Support Guidelines. The amount a parent must pay depends on the parent's income and how many children they must support. Here is a chart showing some of the Child Support Guideline amounts.
Examples of Child Support Guideline Amounts
|Payer's Income||Amount of support to be paid every month|
|1 child||2 children||3 children|
Please note: This chart shows examples of amounts set out in the Child Support Guidelines for Ontario. To calculate the child support for your situation visit the Federal Government website.
If parents cannot agree about child support—the amount, who will pay it or what the terms of child support will be—they can apply in court for a judge to make a decision about child support. See Going to court.
Sometimes the court will order a parent to pay less than the Child Support Guidelines suggests if:
- The child is over age of 18
- The child spends an equal amount of time living with each parent
- Both parents have custody of at least one child
- The payor proves that they would suffer from undue financial hardship by paying the higher amount
Guideline amounts are meant to help pay for basic living expenses only. The court may decide that a parent must pay more than the Guideline amount if there certain extra expenses to pay. These extra expenses can include things like medical insurance, childcare costs, health-care costs, and expenses related to a child's education. Extra expenses are usually shared between parents depending on their incomes.
After child support has been paid for 6 months, either parent can ask the court to change the child support order. They can ask for a change if their income has risen or fallen, or if the cost of raising the children has gone up.
How to enforce support orders
In Ontario, a government office called the Family Responsibility Office (FRO) enforces support orders. When a court orders someone to pay spousal or child support, the order is automatically filed with the FRO. The FRO will also enforce orders for couples who separated without going to court. If the couple gives the FRO a copy of their separation agreements, the FRO will enforce orders for couples who separated without going to court. See Writing a separation agreement.
The FRO collects payments from the person who has been ordered to pay spousal support or child support. Once it collects the money, the FRO gives the support payment to the other person. For more information about the FRO visit www.ontario.ca/FRO or call 1-800-267-4330.
If the payer doesn't pay support, the FRO can collect the money from the payor's employer. The FRO can get money from the payor's bank accounts or by putting a lien on something that the payor owns. If the FRO discovers that the payer is trying to avoid paying by hiding money, another person who is linked financially to the payer can be ordered to pay the support payments. This person might be a new spouse, or another family member that the payor share expenses with. The FRO can also collect support payments from money the government owes to the payer.
The FRO can collect money from a payer who does not live in Ontario. It has the power to enforce support orders across Canada, and in the United States and several other countries.
If a payer has not paid support, the FRO can suspend a payer's driver license, their hunting or fishing license or their passport. When a payer refuses to pay support, they can be sent to jail for up to 180 days.
If someone doesn't pay you support for years, you can ask the court to order retroactive payment of support arrears. See Going to court.