We’re married. How do we divide our property and debts if we separate or divorce?
5. Make an agreement or apply to court
If you and your partner agree, you can make a separation agreement that says how you divide your property and . This usually says who pays the other an .
The law also allows you and your partner to make a separation agreement that divides things in a different way than through an equalization payment. You can even agree not to divide property and debts at all.
But most people use the equalization payment at least as a guide when deciding how to divide property because that is what they usually have the right to under Ontario law. So they look at this first before deciding if they want to agree to divide their property differently.
If you and your partner can’t agree, you can ask a family law professional to help you resolve your issues. Or, you can go to court and ask a judge to decide.
Choose the right court
There are 3 courts that deal with family law issues in Ontario. These are the:
- Ontario Court of Justice
- Superior Court of Justice
- Family Court branch of the Superior Court of Justice
It is important that you go to the right court. You have to start your case in a court that:
- Deals with the family law issues you need to resolve. For example, the Ontario Court of Justice doesn't deal with divorces or dividing property, so you would have to go to either the Superior Court of Justice or Family Court branch of the Superior Court of Justice.
- Is in the municipality closest to where you or your partner live. But, if your issues include , , or , you should go to the court in the municipality where your child lived before you and your partner separated. Decision-making responsibility and parenting time used to be called and .
If you're not sure which court to go to, call the family courthouse (link is external) in your municipality to ask.
The time limit to make a claim in court for an equalization payment is 6 years after you and your partner separate or 2 years after you , whichever happens first.
Sometimes a court gives you more time. But you have to explain why you needed more time to ask for an equalization payment.
If you signed a or a but one of you no longer wants to follow it, that person may ask the court for an order to set aside the agreement. This means the court allows them not to follow all or part of the agreement.
But the other person can ask the court to make an order that divides your property in the way you agreed to in your agreement.
The courts encourage people to decide their issues on their own. So if you have an agreement, the courts won't set aside your agreement easily.