Property Rights and Obligations of Married and Co-habiting Partners (Updated March 2013)

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Recorded on March 6, 2013 - This webinar in the Family Law Education for Women (FLEW) series looks at the Ontario rules for division of family property, for married and co-habiting couples following relationship breakdown. Topics include the equalization payment, the matrimonial home, and issues for surviving spouses. Presenters are Tamar Witelson, Legal Director at The Metropolitan Action Committee on Violence Against Women and Children (METRAC) and Robert Halpern, partner and head of the Family Law Group at the law firm Torkin Manes.

This webinar is produced by METRAC as part of the Family Law Education for Women (FLEW) series in partnership with CLEO.

Watch an archived recording of this webinar and download copies of presentation materials at:
http://yourlegalrights.on.ca/webinar/property-rights-and-obligations-married-and-co-habiting-partners-updated-march-2013

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Property Rights and Obligations of Married and Co-habiting Partners (Updated March 2013)

  1. 1. U d t d P t Ri ht dUpdated: Property Rights and Obligations of Married and Co-habiting Partnersof Married and Co habiting Partners March 6, 2013 Tamar Witelson, Legal Director, METRAC f il l Robert Halpern, Family Law Specialist, Torkin Manes LLP, Toronto Funded by: www.onefamilylaw.ca 06/03/2013 1
  2. 2. METRACMETRAC METRAC, the Metropolitan Action Committee on Violence Against Women and Children  works to end violence against women youth and children works to end violence against women, youth and children  a not-for-profit, community-based organization www.metrac.org METRAC’s Community Justice Program  provides accessible legal information and education for women and service providers  focuses on law that affects women, from diverse backgrounds,g especially those experiencing violence or abuse FLEW, Family Law Education for Women in Ontario  provides information on women’s rights and options under Ontarioprovides information on women s rights and options under Ontario family law  in 14 languages, accessible formats, online and in print www.onefamilylaw.ca www undroitdefamille cawww.undroitdefamille.ca 06/03/2013 2
  3. 3. Presenters Tamar Witelson Legal Director, METRAC Robert Halpern Family Law Specialist, Torkin Manes LLP, T tToronto 06/03/2013 3
  4. 4. Topics to be Covered 1. Introduction – Division of Family Property in OntarioOntario 2. Equalization Payment 3 The Matrimonial Home3. The Matrimonial Home 4. Family Property for Surviving Spouses 5 Common Law or Co Habiting Partners5. Common Law or Co-Habiting Partners 6. Division of Property vs Spousal Support 7 Additional Resources7. Additional Resources Information is accurate as of March 6 2013Information is accurate as of March 6, 2013 06/03/2013 4
  5. 5. I d iIntroduction: Division of Family Propertyy p y 06/03/2013 5
  6. 6. Division of Family Property in Ontario • Ontario Family Law Act, R.S.O. 1990, CHAPTER F.3 • applies to married spouses both opposite and same• applies to married spouses, both opposite and same sex • guiding principles:guiding principles:  marriage is an equal partnership  assumes each spouse contributes equally to household, child and financialchild, and financial responsibilities • result: each spouse entitledresult: each spouse entitled to equal share of growth of couple’s net worth, between wedding and separation date 06/03/2013 6
  7. 7. Division of Family Property in Ontario Each spouse will determine: • Assets and debts on the date of marriageAssets and debts on the date of marriage • Assets and debts on the date of separation• Assets and debts on the date of separation • Calculated for husband and wife separately• Calculated for husband and wife separately 06/03/2013 7
  8. 8. E li i PEqualization Payment 06/03/2013 8
  9. 9. Equalization Payment • The payment from one spouse to another at marriage breakdown to divide assets from marriage equally • applies to the increase in couple’s property that occurred during the marriage • deducted from calculation:  property that each spouse owned on the date of marriage o Property is minus debts  Matrimonial home is not deducted • excluded from calculation:  gifts that each spouse personally received during the marriage  Matrimonial Home is not excluded Matrimonial Home is not excluded 06/03/2013 9
  10. 10. Equalization Payment The Calculation • calculate Net Family Property for each spouse: total• calculate Net Family Property for each spouse: total assets minus total debts for each spouse at end of marriageg • asset examples:  pension RRSP business real estate (land cottage rental pension, RRSP, business, real estate (land, cottage, rental property), savings, home furnishings, cars d bt l• debt examples:  mortgage, bank loans, car loans, credit card balances, unpaid income taxes or property taxesp p p y 06/03/2013 10
  11. 11. Equalization Payment The Calculation • Spouse 1 (higher Net Family Property) minus Spouse 2 (lower Net Family Property)Spouse 2 (lower Net Family Property) • divide the difference by two • Spouse 1 pays half the difference to Spouse 2 ExampleExample Spouse 1 ($80,000) minus Spouse 2 ($60,000) $20 000 di id d b 2 $10 000$20,000 divided by 2 = $10,000 Spouse 1 pays $10,000 to Spouse 2p p y , p 06/03/2013 11
  12. 12. Equalization Payment Other issues: • Domestic Contracts spouses can agree to exclude specific property f th li ti l l tifrom the equalization calculation • Violence or abuse get legal advice before signing any agreement about division of family property 06/03/2013 12
  13. 13. Presenters Tamar Witelson Legal Director, METRAC Robert Halpern Family Law Specialist, Torkin Manes LLP, T tToronto 06/03/2013 13
  14. 14. Th M i i l HThe Matrimonial Home 06/03/2013 14
  15. 15. The Matrimonial Home • The “Matrimonial Home” is the home ordinarily occupied by the spouses as the family residence at the time of tiseparation • there are special rules for the Matrimonial Home in the equalization calculation 06/03/2013 15
  16. 16. The Matrimonial Home Equalization Payment calculation: • the value of the Matrimonial Home at separation must be included in the calculation of themust be included in the calculation of the Equalization Payment th M t i i l H i i l d d i th t• the Matrimonial Home is included in the property calculation of the spouse whose name is on the deeddeed 06/03/2013 16
  17. 17. The Matrimonial Home Equalization Payment calculation: • if the Matrimonial Home was owned by one spouse at the wedding date (i.e. before the marriage), it is not deducted from that spouse’s Net Family Property • if the Matrimonial Home was a gift to one of the d i th i it i t l d dspouses during the marriage, it is not excluded from that spouse’s Net Family Property 06/03/2013 17
  18. 18. The Matrimonial Home After separation, both spouses have the i ht t li i th M t i i l Hright to live in the Matrimonial Home: unless and until there is an agreement orunless and until there is an agreement or Court Order to the contrary locks cannot be changed by one party without an agreement or Court Order to the contrary property cannot be sold without both spouses’ agreementg 06/03/2013 18
  19. 19. F il P f S i iFamily Property for Surviving Spousesp 06/03/2013 19
  20. 20. Family Property for Surviving Spouses • if wife or husband dies before her/his spouse, the surviving spouse has a choice regarding family property: 1 if there is a will accept the bequest of property according1. if there is a will, accept the bequest of property according to the will, OR 2. if there isn’t a will, accept the assignment of property according to the rules for intestacy (no will) ORaccording to the rules for intestacy (no will), OR 3. choose division of property according to the equalization calculation • if surviving spouse chooses division of property bydivision of property by equalization calculation (#3), that takes priority over will or intestacy rules 06/03/2013 20
  21. 21. Presenters Tamar Witelson Legal Director, METRAC Robert Halpern Family Law Specialist, Torkin Manes LLP, T tToronto 06/03/2013 21
  22. 22. C L C H bi iCommon Law or Co-Habiting Partners 06/03/2013 22
  23. 23. Common Law or Co-Habiting Partners • The Ontario Family Law Act rules for division of property do not apply to common law or cohabiting partners • Courts have made rules for the division of property between• Courts have made rules for the division of property between unmarried partners who are separating • Factors the court considers:  length of relationship  was there a “joint family venture”  integrated finances  cooperation in running the household 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 pays money to the other  divided ownership of some family property between partners divided ownership of some family property between partners 06/03/2013 23
  24. 24. Di i i f PDivision of Property vs Spousal Supportp pp 06/03/2013 24
  25. 25. Division of Property vs Spousal Support • The Family Law Act does apply to common lawy pp y partners for spousal support • In Ontario “common law” for support purposes• In Ontario, common law for support purposes is defined as partners who: lived together for at least three years, org y have a child together and lived together in a relationship of some permanence • See webinar: Financial Support After Breakup: What Women Should Know About Spousal and Child Support http://yourlegalrights on ca/webinar/84848http://yourlegalrights.on.ca/webinar/84848 06/03/2013 25
  26. 26. Division of Property vs Spousal Support Supreme Court of Canada has ruled:Supreme Court of Canada has ruled: • Legislation that excludes unmarried partners from spousal support and division of propertyfrom spousal support and division of property rules does not violate the Canadian Charter of Rights and Freedomsg (Quebec (Attorney General) v. A [Eric v. Lola],(Q ( y ) [ ], 2013 SCC 5; Walsh v. Bona, 2002 SCC 83) 06/03/2013 26
  27. 27. Presenters Tamar Witelson Legal Director, METRAC Robert Halpern Family Law Specialist, Torkin Manes LLP, T tToronto 06/03/2013 27
  28. 28. Addi i l RAdditional Resources 06/03/2013 28
  29. 29. Additional Resources (Family) Legal Aid Ontario http://www.legalaid.on.ca/en/getting/default.asp • Toll-free: 1-800-668-8258; TTY: 1-866-641-8867 T 416 979 1446 ( ll ll )• Toronto: 416-979-1446 (accepts collect calls) Family Law Information Centres (FLICs) http://www.legalaid.on.ca/en/getting/type_family.aspp g g g yp _ y p Family Law Services Centres (FLSCs) http://www.legalaid.on.ca/en/contact/contact.asp?type=flsc Family Law Education for Women (FLEW) http://www.onefamilylaw.ca/en/resources/ Femmes ontariennes et droit de la familles (FODF)Femmes ontariennes et droit de la familles (FODF) http://undroitdefamille.ca/ Ontario Women’s Justice Network (OWJN) www.owjn.org 2906/03/2013
  30. 30. Additional Resources (General) Law Society of Upper Canada Lawyer Referral Service http://www.lsuc.on.ca/with.aspx?id=697 • Toll-free: 1-800-268-8326 • Toronto: 416-947-3330 • TTY: 416-644-4886 Toolkit for a good Client-Lawyer Relationship http://schliferclinic.com/vars/legal/pblo/toolkit.htm • Barbra Schlifer Commemorative Clinic Ministry of the Attorney Generaly y http://www.attorneygeneral.jus.gov.on.ca/english/ • Toll free: 1-800-518-7901 • TTY: 1-877-425-0575 Fi d it l l li iFind a community legal clinic near you http://www.legalaid.on.ca/en/contact/contact.asp?type=cl 211 Canada.ca http //211canada ca/http://211canada.ca/ 3006/03/2013
  31. 31. Additional Resources (General) Online forms http://www.ontariocourtforms.on.ca/english/family/ Ontario Court Forms Assistant https://formsassistant.ontariocourtforms.on.ca/Welcome.aspx?lang=en • Get help online to complete family court forms Ontario Courts http://www.ontariocourts.on.ca/ • Online guide provides an overview of all courts in OntarioOnline guide provides an overview of all courts in Ontario • Information on family courts: – Superior Court of Justice http://www.ontariocourts.ca/scj/en/famct/ – Ontario Court of Justice http://www.ontariocourts.ca/ocj/family-court/overview/ Ontario Court Locations http://www.attorneygeneral.jus.gov.on.ca/english/courts/Court_Addresses/ • Find court addresses across Ontario• Find court addresses across Ontario 06/03/2013 31
  32. 32. Domestic Violence and Abuse For information, if your partner is abusive or violent: Assaulted Women’s Helpline http://www.awhl.org/  24 hours/7 days; multiple languages  Toll-free: 1-866-863-0511;
TTY: 1-866-863-7868 Legal Aid Ontario http://www.legalaid.on.ca/en/getting/type_domesticviolence.asp  Available to every immigration status  Free telephone interpretation services for languages other than English and French  Toll free: 1 800 668 8258; TTY: 1 866 641 8867 Toll-free: 1-800-668-8258; TTY: 1-866-641-8867 Family Violence Authorization Program (Legal Aid Ontario)  Free 2-hour emergency meeting with a lawyer  Offered through some shelters and community legal clinics Offered through some shelters and community legal clinics  Toll-free: 1-800-668-8258; TTY: 1-866-641-8867 FLEW (Family Law Education for Women) Resources page http://www onefamilylaw ca/en/resources/http://www.onefamilylaw.ca/en/resources/ 06/03/2013 32

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