Family Property – What is the Shareable Portion of Assets and Debts?

The Family Property Act does not deal with the actual ownership or equal division of a couple’s assets. What it provides is a mechanism to equalize the net value that each party is left with. In brief, upon a determination of the value of the family’s assets and debts as at the date of separation, each party is entitled to an equal sharing of net family assets (total assets less total debts). Where one person owns and possesses more than the one-half value that he or she is entitled to, he or she pays an equalization payment to the other so that each is left with the same value of net family assets.

Although claims for an unequal division can be made under the Act, this relief is not commonly granted by the court.

Generally speaking, shareable family property under The Family Property Act is property that is owned by either party in his or her name alone that was acquired between the dates of cohabitation and separation. Pre-acquired assets (things you had going into a relationship) are typically exempt, unless those assets were acquired in specific contemplation of the relationship. Other exceptions to shareable family property include gifts and inheritances, in most cases.

Pre-acquired assets, although typically exempt, can be converted to family assets and lose their exempt status. Further, while a pre-acquired asset may be exempt, the appreciation in its value throughout the course of the relationship is shareable.

Given the many factors that affect the equalization process, speaking with a lawyer about your entitlement early on is important, particularly as the provisions for relief under the Act are not available indefinitely. For married spouses, no application for an accounting and equalization of assets can be made after 60 days from the date on which a divorce takes effect. For common-law partners, the limitation period expires 60 days after the dissolution of their common-law relationship is registered with Vital Statistics or, where a common-law couple did not register their relationship, after three years from the date of separation.

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