Division of Property

Separation can be a painful, challenging process

Division of Property Service Ontario

Separation can be a painful, challenging process

At least 38% of marriages end in divorce within Canada, not all of those end amicably. Most of those individuals did not go into their marriage thinking they would be divorced and have to divide their property. We provide a guide to divorce property division for all of those who are unaware of the laws surrounding Divorce and Property Division.

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Matrimonial Home

What is Matrimonial Home?

As a generalization, one of the most valuable assets a family owns is their matrimonial home therefore when a decision is made to separate or divorce, dividing property or the matrimonial home can be very stressful. According to the Ontario Family Law Act, the matrimonial home refers to a residence or property that one or both spouses have an interest in buying or a home that is rented or owned and occupied by both spouses and their family, up until the day that they have officially separated. The matrimonial home can include any type of housing unit, including a condo or mobile home. It is advised to consult a professional for further assistance if you are unsure of the property or properties you and your spouse inhabited during a marriage. In some marriages, spouses own more than one matrimonial home, in which case both residences must fulfill the requirements upon the date of separation. For example, a married couple can have a principal residence and a cottage home, which was used frequently on weekends or even throughout the week. Any property that is not considered a primary residence but is occupied regularly can technically be considered as an additional matrimonial home under Ontario’s Family Law Act. While dividing these properties during a divorce is extremely important to make sure you have done things properly and sought a professional for help or assistance.

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Within the province of Ontario, the matrimonial home legally belongs to both spouses, regardless of the individual name listed title or on the mortgage. Once a couple has officially married, the home is instantly owned by both parties. This also applies when a spouse independently purchased the home, prior to the marriage occurring. As a result of this, the matrimonial home is equally divided between both parties if found going through a separation or divorce. However, it is imperative that you understand and practice your rights when negotiating terms for the matrimonial home. According to Ontario’s Family Law Act, the matrimonial home is treated slightly different than other financial assets or properties that are individually or mutually owned. Under Ontario’s Family Law Act, the matrimonial home is granted with a unique legal status when a couple is or was legally married; therefore, the process of dividing this property during the divorce is fairly complex. Oftentimes, it can be challenging to decide upon what to do with the matrimonial home during the division of property, as it is typically the most valuable asset a couple mutually owns. Although, there are many rights concerning the matrimonial home for both spouses, that they would not be entitled to if they were not legally married in Ontario.

 

In Ontario, both spouses within a marriage have an equal and legal right to continue living within the matrimonial home, until the home is officially sold to one spouse individually, sold to a third party buyer, or until a judge legally grants a court order stating one spouse must move out of the home. With that being said, when a married couple gets a legal separation while living in their matrimonial home, it is not legally acceptable for one spouse to change the locks on their ex-partner if they decide to move out once separated; according to Ontario’s Family Law Act, there will be no legal grounds to support that decision.

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Division of Marital Property

Why Division of Marital Property?

Ultimately, divorce and property go hand in hand. During a divorce, regardless of what process is taken, finances will always remain a significant aspect to negotiations, the division of marital property is a complex portion of the divorce that needs to be done properly. It is not uncommon to be anxious or uncertain about the division of marital property, as there are various factors to consider and agree upon. Typically, with many marriages, one spouse takes primary responsibility of managing the finances; therefore, when a divorce occurs the other spouse feels uncertain or unaware of the financial status of the couple or how to divide the martial property. If this is a relatable situation, it is advised to raise any concerns and obtain a professional for financial assistance or inquire about Turning Point Family Mediation. Family mediators at Turning Point Family Mediation will assist individuals in creating their own budgets, manage their own debt, and create a personal financial plan moving forward. Once a divorce is finalized, it is now the sole responsibility of the ex-spouses to take on their finances individually. It is crucial to be aware of your financial responsibilities in relation to any bank accounts, mortgage loans, credit card bills, and utility payments. In preparation of this new reality, it is essential to organize and manage all finances prior to taking on this responsibility independently. Understandably, this can be a challenging task while dealing with the physical and emotional stress of a divorce; however, without doing so, individuals can experiences great financial hardship in the near future. Although, individuals have the ability to successfully take control of their own finances after a divorce, when a proper financial plan is created to meet their individual needs.

 

Within this section, when discussing property we are referring to; money (financial investments, cash, bank accounts, etc.), pensions, Registered Retirement Savings Plans (RRSP), insurance policies, disability benefits, real estate, businesses, frequent flier miles, and any other properties or financial assets a couple mutually possesses. Essentially, when referring to property, we are referring to anything a couple owns, which also includes personal and business vehicles, clothing, jewelry, artwork, furniture, appliances, electronics, even family heirlooms.

 

When obtaining a divorce in Ontario and discussing the division of marital properly, any property that was acquired during a marriage will be divided amongst both spouses evenly. Typically, if your spouse owns any property or other assets that are more valuable than the property or additional assets that you own, your spouse must provide you with the difference in financial value. This expectation is to ensure that both parties are exiting the marriage with fairly equal finances. The division of marital property and assets can be extremely challenging for some couples to agree upon; therefore, couples can allow the court to decide upon these terms for you although this can get extremely expensive. If a couple decides to let the court divide their property and assets, they must claim this within six years of being legally separated or within two years of a divorce being finalized. According to the law within Ontario, everything must be divided equally, regardless of who paid for it in the past or whose name is legally listed. There are professionals and online resources that can assist couples in calculating the equalization of assets and properties during a divorce, which will support spouses in determining how to equally divide their property and assets and record it on their finalized Separation Agreement.

 

In Ontario, a family patrimony is the term used when considering a group of assets shared between partners who decide to terminate their marriage. In some cases, the rules for the family patrimony can even apply to common-law relationship; although it is not as common in the eyes of the law. Within the rules of the family patrimony, the assets that are automatically equally shared, regardless of who they originally belonged to or were purchased by, include;

 

  • The matrimonial home or homes
  • Vehicles used for family purposes
  • Any finances acquired in a pension plan during a marriage

 

There are a few assets and properties that might be excluded from the family patrimony or the division of marital property in Ontario. The property or assets that are excluded from the family patrimony include; income properties, bank accounts, stocks, bonds, jewelry, financial investments, and other personal property. The rules for this can even apply to money, investments, and property that was gifted or inherited by one spouse in the relationship from a third party outside of the marriage. Although, it is important to note that if any gifted or inherited money is used to purchase anything during the marriage, then it is challenging to trace; therefore, the gifted or inherited money used to make previous purchases cannot be excluded from the Net Family Property (NFP) calculations.

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Division of Property Agreement

Available Property Agreement

A Division of Property agreement, otherwise known as a Separation Agreement, is a legal document outlining exactly how your marital property will be divided among spouses. It is the document that indicates you are now financially independent from one another. The Division of Property agreement is important and necessary because it is the legal document releasing you from your spouse’s future liabilities and debts.

 

In Ontario, a Divorce of Property Agreement is otherwise known as a Separation Agreement, being one of the most crucial documents during the divorce process and a legal separation requirement. A Separation Agreement / Division of Property agreement is an ongoing legal contract between the two parties involved in the marital separation. The legal Separation Agreement / Division of Property agreement will indicate how the two parties will best move forward in the future and ensure any anticipated issues are resolved. During the process of creating and signing a Separation Agreement / Division of Property Agreement, both parties must be aware of their legal rights, responsibilities, and obligations. Therefore, it is extremely important that this document is properly created by keeping the laws of Ontario in mind, as it will impact your life and your children’s lives in the upcoming years. It will determine many future terms including; the relationship between you and your ex-spouse, how your children will be raised, your financial status, your taxes, your ability to take out loans and mortgages, when you’re able to re-marry, and etc. Remember, the decisions you make now, will impact your realities in the future. In the process of constructing a legal Separation Agreement, it is vital to negotiate future financial and parenting plans, prior to signing this legal contract. These two aspects to the divorce process can be stressful and time consuming; however, it is necessary in determining the success of yourself and your family in the future years to come.

 

In some cases, individuals may be hesitant or reluctant to complete a Financial Disclosure when going through a separation or divorce; although, this process is no longer an option that can be avoided. As of May 2015, the Family Law Rules in Ontario indicate that full and complete financial disclosure is required by both spouses involved in the separation. Ultimately, a full and formal financial disclosure is a mandatory step in the divorce process required of both parties. Each party must clearly disclose all of their finances, so each spouse knows exactly what they are dealing with and agreeing/disagreeing to. The Family Law Act enables the courts to disregard or set aside any Separation Agreement that does not include a full Financial Disclosure. Therefore, all Separation Agreements must be properly and thoroughly prepared prior to applying for a divorce with the courts. This will avoid any additional time and costs once the application has been filed.

 

In Ontario, it is important to consider and successfully incorporate these influential factors when writing a legal Separation Agreement:

 

  • A full financial disclosure
  • Co-constructed Parenting Arrangements
  • Child Support commitments
  • Spousal Support commitments
  • A valuation of existing pensions
  • A formal division of assets
  • Tax obligations
  • Equal separation of the Matrimonial Home
  • A Future Dispute Resolution Clause
  • Indication of any Independent Legal Advice

 

A full Financial Disclosure is a mandatory step involved in the process of divorce. This process is referred to as both parties formally providing documentation supporting their individual and combined finances. These financial documentations include; bank account balances, savings accounts balances, any cash on hand, verify RRSPs, property values, investments, pensions, and etc. During this phase of the divorce process, both parties must also present any outstanding debts and liabilities. In preparing a Financial Disclosure, both parties are able to make important financial decisions during the separation, which are based on accurate financial information. It protects both parties by ensuring they have all the necessary information to make informed financial decisions, as well as ensuring transparency and honesty between both parties relating to any existing assets or debts. For a full Financial Disclosure, any privately owned business will typically be valued and included in this process; this can include any company assets, real estate, vehicles, or other tangible items. In addition to this, a formal pension valuation will be required, which differs from a pension statement. A pension valuation indicates that there are no mistakes, misunderstandings, or secrets during the Financial Disclosure; ensuring that all parties are financially protected. Once both parties have reached a mutual agreement of the Financial Disclosure, a lawyer must review the Financial Disclosure prior to both parties signing any legal documents. By gaining a lawyer’s legal support in this phase, both parties can guarantee they are equally satisfied with their knowledge and distribution of the family finances.

 

In some cases, individuals may be hesitant or reluctant to complete a Financial Disclosure when going through a separation or divorce; although, this process if no longer an option that can be avoided. As of May 2015, the Family Law Rules in Ontario indicate that full and complete financial disclosure is required by both spouses involved in the separation. Ultimately, a full and formal financial disclosure is a mandatory step in the divorce process required of both parties. Each party must clearly disclose all of their finances, so each spouse knows exactly what they are dealing with and agreeing/disagreeing to. The Family Law Act enables the courts to disregard or set aside any Separation Agreement that does not include a full Financial Disclosure. Therefore, all Separation Agreements must be properly and thoroughly prepared prior to applying for a divorce with the courts. This will avoid any additional time and costs once the application has been filed.

 

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Distribution of Property

How Distribution of Property

Once the Division of Property Agreement has been created and all financial matters have been agreed upon and settled it will be time to start the distribution of property. Some property can be distributed by the individuals but oftentimes banks and lawyers will need to be consulted, especially with the matrimonial home and debts.

 

Regardless of what option is decided upon, both spouses must be aware that any final decisions about the matrimonial home must be included within a finalized Division of Property agreement or the Separation Agreement. A formal Division of Property agreement / Separation Agreement is crucial when changing homeownership of the matrimonial home, as it clearly outlines the financial terms of the divorce relating to the division of property and other assets. In addition to this, during a legal divorce or separation a Separation Agreement is essential for real estate transactions, as it will direct the real estate attorney towards the handling of sales and the distribution of proceeds from the sale of the matrimonial home. As previously stated, if a formal Separation Agreement is not finalized prior to selling the home; the funds will be placed within the real estate lawyer’s trust account until this document is successfully completed. 

 

Another significant factor to consider when negotiating the matrimonial home is the effects this has on the mortgage of the home. Majority of homeowners will have required a mortgage from their banking institution or another financial institution to support their purchase of the home; therefore, many divorcing or separated couples are concerned about what happens to their mortgage once the relationship ends. Splitting spouses must know that when applying for a new mortgage on the same home or a new home, all Canadian banks will require proof of a legal and finalized Separation Agreement prior to being approved, without your spouse in the picture. Additionally, each spouse will be expected to qualify for a new mortgage based on their own income and existing debts, regardless of what is listed on a Separation Agreement; although, banking institutions will recognize any spousal support payments or other financial support provided by an ex-partner, as a source of total income. Lastly, if both spouses’ names are listed on an existing mortgage during or after a divorce or separation, they will both be responsible for paying the mortgage payments and property taxes on the matrimonial home, in the eyes of the bank or lender.

 

Pensions, if being transferred from one individual to another, will also need to be done by the pension provider by reading the instructions in the Separation Agreement / Division of Assets Agreement.

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Net Family Property Statements

Create Property Statements

A Net Family Property Statement is a form used to calculate our clients’ Net Family Property. A vital document for couples going through the separation process, the form lists all assets and debts as of the “Date of Marriage” and “Date of Separation”. Once both parties have disclosed their financial statements, we calculate the “equalization payment” – the payment to be made from the spouse with the higher value to the spouse with the lower value – to put both spouses at an equal position.

 

Our mediators will walk you through every step of this process, to help you make the most informed and confident decisions during the process as long as you have provided the proper financial disclosure. Financial disclosure is a broad term that is used to describe the process of providing access to all of one’s financial information. During a separation, one must provide their mediator and partner with all information regarding their assets and debts as of their “Date of Separation” (e.g. a bank statement or Visa statement showing the account balance as of the date of separation).

 

When calculating the equalization of property and assets during a divorce in Ontario which is done by creating the Net Family Property Statement, it is important to remember that each spouse is entitled to half of the cash value of the family patrimony that was acquired during the marriage. There are two main factors to consider when determining who will be receiving an equalization payment and the total value of that payment. Firstly, each spouse must calculate their New Family Property (NFP) by adding the value of everything they own. With this amount, each spouse must then subtract the value of whatever they owned prior to the marriage, while also including their individual debts, inheritances, and/or gifts. Each spouse is responsible for determining the market value of any of their assets, to devise accurate calculations. Second, the couple must mutually calculate the amount that will constitute the equalization payment. The equalization payment is a payment provided by the spouse with the higher Net Family Property (NFP), to their ex-partner, which is also known as a settlement payment. Typically, this payment is half of the total difference between each spouse Net Family Property (NFP). For example, if the difference between both spouses individual Net Family Property (NFP) is $50,000, then the spouse with the higher Net Family Property (NFP) will pay the other spouse $25,000 to settle. However, it is important to keep in mind that this formula may not always be accurate. In some cases, the Ontario court system can order a spouse to pay the other more or less than previously calculated or anticipated. Oftentimes, this is based on a judges personal belief that the equalization payment is utterly unfair or if the couple had previously signed a marriage contract or another agreement outlining the division of property and assets. In the case where a marriage contract or other agreement had been previously signed, the court will ensure that you follow the agreements previously created and agreed upon, unless the judge deems the contract unfair. There are various factors that a judge will consider when deeming an equalization payment as fair or not:

 

  • Whether or not one spouse hide their debts prior to a marriage
  • Whether or not one spouse recklessly accumulated debt during a marriage
  • Whether or not one spouse intentionally reduced the value of their property prior to a divorce or separation
  • Whether or not the Net Family Property (NFP) of one spouse includes all major gifts from the other spouse
  • If a married couple lived together for less than five years, and the equalization of payment does not reflect a fair share of their property

 

According to the Family Law Act, the rules for dividing assets differ from the rules that spouses must follow when dividing the matrimonial home. For the matrimonial home, if the spouses purchased their home together, then the total equity must be divided in half for each spouse once the relationship has ended. However, for other assets, such as personal bank accounts, the rule for calculating an entitled value of money for each spouse differs. When referring to bank accounts specifically, each spouse must consider the following formula to determine their entitlement; the bank accounts value at the date of separation, minus the bank accounts value at the beginning of the marriage, then cut that amount in half. It is advised to consult a professional, if you remain unsure of your personal entitlement to your spouses’ finances and/or your spouses’ entitlement to your personal finances.

 

When involved in a common-law relationship, both partners are not automatically entitled to one another’s property. However, both partners can request a court to order them entitlement to some of their partner’s property by providing evidence of contribution to that property. In other words, if one partner can demonstrate how they physically or financially contributed to their partner’s ability to acquire that property or financial wealth, then they may be granted with some entitlement. In order to make this claim, it must be done within two years of separating from your partner. As previously stated, when a couple in a common-law relationship decides to separate, each partner tends to leave the relationship with what they entered the relationship with. The only property that is equally divided amongst a common-law couple includes any asset that is listed under both partners’ names. A general agreement that common-law couples create is a Cohabitation Agreement or even a Separation Agreement; evidently, by possessing a formal and detailed agreement, the process of dividing property and assets will be easier to handle once the relationship ends.

 

When a common-law couple cannot agree upon how they are going to divide up their property and mediation services have not been successful, they can consider going to court for a judge to make a final decision for them. Common-law couples can find further support in seeking legal assistance from a judge under these circumstances:

 

  • Both partners cannot agree on how to divide an asset that was purchased together
  • Both partners had previously agree to mutually share property that is only listed under one of their names
  • A property is under one partners name, but the other partner made it possible for them to acquire the property and have been suffering financially as an outcome
  • One partner has added value to a property that is in the name of only one spouse

 

It is important to note that when seeking assistance from the court, they may take into consideration the unpaid labor that is done around the home, such as; caring for a family and attending to the home. This can increase a partner’s ability to obtain entitlement to a property or any other assets under review.

 

Finally, regardless of if a couple was married or in a common-law relationship, each party is individually responsible for any debt that was accumulated in their own name or jointly during the relationship. If a couple was married, the debt that is owed will be subtracted from the total amount of the property value when calculating the equal division of property.

 

Undoubtedly, debt is just as significant to the divorce property division, as financial assets and income are. Equal to a marriages shared finances, any existing debt is equally distributed during a divorce as well. Actually, debt is one of the first aspects of a relationship’s finances that must be properly addressed within a Separation Agreement. Evidently, any financial ties to your ex-spouse must be negotiated and addressed in writing to prevent any future complications. Even if your ex-spouse verbally agrees to cover a portion of debt, you must request that in writing and remove your name from any official document marking you as financially responsible. This also applies for any debt that you may not have been aware of during the course of the marriage. Although, if the proper legal actions are taken to address this you may be able to cut all financial ties from your ex-spouse, while protecting your own finances. Ultimately, when you are going through a divorce, your marriage is being terminated, not your shared financial responsibilities.

 

During a divorce, the last thing an individual may consider is their individual future credit score. Unfortunately, the divorce process can greatly impact your finances and credit history, as it aligns with extreme unplanned costs. With that being said, during a divorce it is vital to follow the legal steps towards properly separating your credit from your ex-spouse’s within a Separation Agreement to ensure it is legal, binding, and enforceable. It is important to protect and/or restore your individual credit, as your future financial reputation is on the line. Evidently, obtaining a low credit score can greatly impact the success of your future as an independent party.

 

Divorcing couples usually seek the quickest and cheapest route to finalize their divorce; hence, they do not want to spend a lot of money during this process. However, it is important to remember that the success of your future depends on how you manage the divorce process prior to it being finalized. Therefore, the amount of time and money you spend during a divorce will be rewarding in the future. It is crucial to spend the appropriate amount of money and time needed to successfully develop a legal, binding, and enforceable Separation Agreement; by not doing so, ex-spouses will see themselves revisiting court in the near future to correct any mistakes made.

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Division of Property Agreement

Property Agreement

A Division of Property agreement, otherwise known as a Separation Agreement, is a legal document outlining exactly how your marital property will be divided among spouses. It is the document that indicates you are now financially independent from one another. The Division of Property agreement is important and necessary because it is the legal document releasing you from your spouse’s future liabilities and debts.

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Divorce and Taxes in Ontario

Help to must be aware of the tax implications

When residing in Ontario, divorcing couples must be aware of the tax implications that are typically associated with the divorce process. During a divorce, both spouses will experience a significant change in their tax situations that will last until after a divorce is finalized.

 

The Canada Revenue Agency (CRA) considers a couple separated strictly for tax purposes, once a married or common-law couple has lived separately and apart for more than 90 consecutive days. If a couple does not live apart for 90 days or more, the CRA does not consider the couple separated for the primary purpose of taxes for Child and Family Benefits. Although it is legally possible to be separated while living within the same household as an ex-spouse, the CRA will not recognize the separation until the specific standards have been met. It is crucial to keep note of the specific date that marks 90 days of living apart, as this date will be significant for current and future tax purposes. It is important to remember that this requirement differs from the Family Law Act; as couples are not required to live in separate locations to be considered a ‘separating’ or ‘separated’ couple. Evidently, the CRA possesses different qualifications and classification standards regarding divorce and taxes, as opposed to the legal system in Ontario. Some spouses may be exempt from this specific requirement if there is a clear, self-contained separate living quarters for both spouses within the same household. Although, if two spouses live within the same home and continue to share responsibilities, such as parenting and finances, the CRA will not consider the couple to be separated. In fulfilling or not fulfilling this requirement, individuals will notice tax implications regarding Canada Child Tax Benefit, Goods and Services Tax (GST), and Harmonized Sales Tax (HST).

 

When a couple decides to divorce, they must agree upon a division of assets, which primarily includes; real estate, savings accounts, financial investments, pension plans, and the matrimonial home. Once agreements are decided upon and listed within a proper Separation Agreement, one or both spouses will have to transfer their assets to equalize and fulfill the agreed upon terms. This process is referred to as an equalization payment and an asset transfer. Usually, cash being transferred for equalization payments during a divorce will not be taxed, as it is considered to be money that has already been taxed by the government. However, possessions transferred from one spouse to another, such as a vehicle or investment, will indefinitely be taxed. Typically, these possessions will be taxed at the financial difference between the current market value and the initially paid value. However, a spouse conducting an asset transfer can use a strategic financial option available, which will allow individuals to use an automatic rollover provision. This financial option will delay any further taxation on the transfer being made. Despite this financial option, individuals must acknowledge the future tax implications that are associated with it, as it is a temporary alternative. With all of this being said, it is wise to obtain a Certified Divorce Financial Analyst (CDFA) to help support the divorce process, especially when dealing with the transfer of assets.

 

During and following the divorce process, all child support payments will not be taxed on; however, spousal support payments are associated with additional tax implications. Typically, child support payments will not be taxed as a source of income for the spouse receiving the payments. In addition to this, child support payments are not tax deductible for the spouse who provides the ongoing payments. However, this financial reality is subject to diverse circumstances. Again, it is always beneficial to obtain a Certified Divorce Financial Analyst (CDFA) during the divorce process. The professional skills and expertise that a CDFA can bring to the table can enable spouses to locate and receive tax deductions and credits related to Special and Extraordinary Child Care expenses. In contrast to this, spousal support payments involve additional tax implications for both parties involved. The standard amount spouses will be taxed are subject to a variety of options available. For example, spouses can decide upon two common options including, monthly periodic spousal support payments and a lump-sum payment. Typically, the periodic payments are taxed as an additional source of income for the support recipient and as a tax deduction for the support payor. Therefore, depending on the support amounts, both spouses can be moved into a different tax bracket. In contrast to the periodic payment option, lump-sum payments are not taxable or deductible if the support payments are made according to a proper and legal Separation Agreement. A CDFA will be able to further explain and support divorcing couples in maximizing the tax implications of any necessary support payments. A CDFA will also assist spouses in understanding how to prevent any future challenges in qualifying for a mortgage, in relation to the amount of support being paid or received.

 

A common question asked during a divorce includes, “Will I be taxed on RRSP’s?” There is no simple answer to the question, as it is dependent on individual situations. Spouses must be extremely careful how and when they decide to transfer any RRSP’s. Typically, individuals will not get heavily taxed on the transfer of an RRSP, if a properly prepared Separation Agreement has been developed and finalized. RRSP’s can be transferred from one party to another without serious tax implications, although the Separation Agreement must be legal, binding, and enforceable. In addition to this requirement, individuals must sign and file a T2220 form to the Canada Revenue Agency (CRA) and provide a copy of a completed Separation Agreement.

 

Keep in mind that if your marital status changes, you must inform the Canada Revenue Agency (CRA), to ensure any divorce and tax implications are correctly handled. More specifically, changing your marital status can affect the amount of UCCB (Universal Child Care Benefit) and/or GST/HST credit you are entitled to. This alteration in status can be adjusted through the CRA’s online services, as long as you have a registered ‘My Account’ profile. However, if you are not registered with the CRA’s online services, you can simply complete and submit a form called RC65, the Marital Status Change. In relation to this, if a marital status has changed, individuals must file an application for a new Working Income Tax Benefit (WITB) Advance Payment. It is imperative to complete and submit this application, as a failure to do so will result in a halt of your WITB advance payments until a new application is received and reviewed.

 

In Canada, if a married or common-law couple have children to consider and support, there is a benefit called, Universal Child Care Benefit (UDDB), available for financial support. In the case of a divorce or separation, the CRA will transfer a child or children under the female parent’s account. If a couple is of the same-sex, then the CRA will decide which parent receives the UCCB for each child in the family. When receiving the UCCB, spouses must file a tax return for this financial support each year, before, during and after a divorce or separation.

 

Another common question asked by divorcing couples includes, “How is the GST/HST credit dealt with during a Divorce?” If a spouse does not apply for the GST/HST credit on their tax return, but is now separated, divorced, or widowed, they must apply for this by writing a formal letter to their legal tax centre. Upon reviewing the request, the government will send a GST/HST credit notice notifying the individual of an updated amount of their GST/HST credit entitlement.

 

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Pension Valuation in Ontario

Pensions included in a divorce?

A commonly question asked by individuals going through a divorce reads, “Are pensions included in a divorce?” The simple answer to this question is, yes. In Ontario, every financial asset and possession that holds increased value throughout a marriage is evenly divided when going through a divorce; therefore, all pensions must be included within a Separation Agreement. The laws of Ontario make it clear that both spouses are automatically entitled to a portion of the others individual pension.

 

A private work pension plan does not solely belong to an individual spouse within a marriage; rather it is measured as a matrimonial asset. A pension valuation will be an aspect covered within the divorce negotiations, to ensure a fair and balanced distribution listed on a Separation Agreement. In relation to the distribution of funds, it is extremely important to know the difference between a ‘Pension Statement’ and a ‘Pension Valuation’. Individuals cannot assume the value of their pension based on their pension statement, as they do not reflect the same amounts. Typically, an annual pension statement does not include the pension valuation as a financial asset to benefit the purposes of the family law. On average, the financial differences between a pension statement and a pension valuation vary between $50,000 and $200,000. With this being said, individuals should not make a final decision about pensions, prior to receiving professional financial support and Independent Legal Advice (ILA). In Ontario, specific government regulations will enable divorcing couples to apply for an immediate transfer of a financial lump-sum from a private pension plan, if they meet the appropriate criteria. In order to be eligible and accepted for this transfer, couples must meet the following conditions:

 

  • The couple must be currently separated with no foreseeable chance of reconciliation
  • The pension has not already been paid out
  • The couple has successfully obtained an official family law value of the pension plan by the plan administrator
  • The appropriate division of the pension is clearly included within their Separation Agreement
  • The couple must provide an exact amount of transfer desired

 

Typically, pension plans are the greatest financial asset to be negotiated during a divorce. If couples possess a Canada Pension Plan (CPP) they can apply to the government to evenly divide their CPP contributions, throughout the time they have mutually lived together. This official process is considered as credit-splitting. Couples are able to apply for credit-splitting if they have lived together for a minimum of one year during their marriage, and have been living apart for a minimum of one year. Although, credit-splitting is not a quick and easy process; spouses are required to notify the government, and then complete and submit the necessary forms prior to being accepted. Note that CPP credits can be evenly distributed even if only one spouse has been contributing to their CPP. Therefore, both spouses are not necessarily required to possess their own CPP account to be provided with a portion of their spouses during a divorce.

 

There are clear differences between a defined contribution and a defined benefit pension, which can cause some confusion for individuals going through a divorce. A defined contribution plan is a retirement plan that is regularly funded by the employee, employer, or both, which is invested in for the individual employee. Once the employee decides to retire, they receive the total accumulated financial contributions earned. In comparison to this, a defined benefit pension is when an employer guarantees the individual employee a specified amount once they have officially retired. The total amount provided is usually dependent on the employee’s income level, years of service, and age; as opposed to being primarily dependent on investment returns upon retirement. Within a defined benefit pension, the family value is defined as the total contributions made between the marriage date and the date of separation. Evidently, couples should obtain the assistance of a financial professional to help determine the exact amount each spouse is entitled to, the increased value of the asset, and how to evenly distribute the total value. As previously stated, individuals are unable to correctly value their pensions independently. It is extremely challenging to determine an updated value of a pension, between the date of marriage and separation. A financial professional and plan administrator must be contacted to properly value a pension for family law reasons. During the negotiations, both spouses will agree upon a separation date, enabling professionals to effectively calculate a pension value and include it within a legal, binding, and enforceable Separation Agreement.

 

When residing in Canada, there are various options for couples who decide to split a portion of their pensions. Typically, the options provided to divorcing couples include; moving funds from one pension account to another with the approval by the pension administrator, transferring the pension value to a secured retirement account, or simply leaving the pension plan for their future benefit. In some cases where the pension is already being received by a retired spouse, the other spouse can apply for an immediate transfer with the government. In this case, a lump-sum will be received by the spouse who is not yet retired. Although, the negotiations of these terms will involve tax implications and ramifications for their future retirement plan.

 

Regardless of the divorce process taken, divorcing couples will be made aware and assisted with their entitlement to a possible portion of their ex-spouses pension. The professionals will determine an exact amount that you may be entitled to, along with how to best distribute any existing pension amounts. It is important to note that not all pensions are necessarily split evenly. The equal division of assets is primarily based on the value of the pension. Therefore, it is possible for one spouse to keep their entire pension, while the other receives an appropriate value determined by professionals. In order to ensure the future income and financial status for both spouses upon retirement, it is essential to obtain assistance from a financial advisor or a Certified Divorce Financial Analyst during the divorce negotiations. In doing so, divorcing couples can ensure that both parties equally benefit from the financial settlement decided upon, and are stable within their financial positions moving forward.

 

Family Mediator For Ontario Couples

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Division of matrimonial property

What about matrimonial property

 

Matrimonial property refers to the assets and debts that were acquired during an individual’s marriage, to which should be divided equally amongst spouses. The division of matrimonial property is set out in the Net Family Property Statement, a document the mediators uses to show the individuals what it looks like for them to leave the marriage with the exact same amount on money excluding any excluded property. The division of matrimonial property is an important part of the separation and divorce process so it is important to seek advice on the topic from a professional. The division of matrimonial property can be extremely challenging for some couples to agree upon; therefore, couples can allow the court to decide upon these terms for you. If a couple decides to let the court divide their matrimonial property and assets, they must claim this within six years of being legally separated or within two years of a divorce being finalized. According to the law within Ontario, everything must be divided equally, regardless of who paid for it in the past or whose name is legally listed. There are professionals and online resources that can assist couples in calculating the equalization of assets and properties during a divorce, which will support spouses in determining how to equally divide their property and assets and record it on their finalized Separation Agreement.

Online Family Mediation Process in Ontario

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Our process for mediation is simple, efficient, and effective. We offer convenient scheduling through our online booking platform, strive to remain responsive at every step of the way, and always ensure your utmost confidentiality throughout the entire process.

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Turning Point
2 County Ct Blvd Suite 400,
Brampton, ON L6W 3X7, Canada
Tel: (905) 552-9515

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Daniella Campoli
2020-07-10
Very professional and compassionate team. Everything was completed in a timely manner. Their efficiency and mediation skills helped save us lots of money and focus on our family first ! Thanks again !!!
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2020-07-10

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