Adam N. Black: Equalization of net family property does not apply to unmarried spouses in Ontario
In the eyes of an Ontario family law lawyer, one of the most significant consequences of marriage is the sharing of property regime that will apply in the event of separation. In other words, when married spouses separate, they will share the wealth they accumulated during the marriage through “equalization of net family property” in accordance with Ontario’s Family Law Act.
When the couple purchased the house, GMC contributed $116,000, which funds were proceeds from the sale of his previous home. AMF contributed only $5,000. The purchase price of the property was $570,000 in July, 2014. Shortly after the couple’s separation, the property was sold for $652,000 in December, 2016. Over the course of approximately two years, the value of the property had increased by $82,000.
“Accordingly, the property provisions in the Family Law Act do not apply. Instead, in cases involving gratuitous transfers, or unequal contributions as here, the principles of trust law from the common law apply. These principles were developed long ago to resolve commercial or financial disputes. Application of same to domestic relationships is far more complex and not always with a satisfactory result. However, in the absence of legislation, it is all we have.
In the absence of a legislated property sharing regime for unmarried couples in Ontario, great uncertainty inevitably arises. The separated unmarried couple often looks to the court to resolve the financial issues between them. The cost of resolving the issues through litigation can eclipse the value of the benefit, as was likely the case in GMC v. AMF.
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