Spouses often believe that they have a right to certain assets upon separation based on their relationship but this isn’t exactly how it works.
The Ontario Family Law Act divides and distributes the value of property, not the property itself.
Upon the dissolution of a marriage, spouses will have to share half of the value of the growth of their asset base from the date of marriage, unless otherwise agreed upon. How does this affect the individual assets though? Can a spouse force her partner to sell his beloved sports car?
Ownership matters. A car that is in the sole name of one of the spouses, remains with that spouse. The only thing that needs to be accounted for is the fair market value of the car. That is to say, the wholesale value of the car, not the acquisition value has to be accounted for in the overall property division.
While ownership remains important in protecting personal assets, the Ontario Family Law Act presumes that spouses will share any wealth accumulated during a marriage equally. This means that a spouse who purchases a vehicle worth $150,000 during the marriage, putting ownership solely in their name, will still have to account for half of that value to their other spouse BUT will be able to keep the vehicle in their name.
Having said that, if the asset is jointly owned, the value would be split between the parties, and either party may force the sale of the item. In these cases, spouses have to come to an agreement, typically one spouse buying the other’s interest in the asset or the asset is sold and the proceeds divided equally.
To truly protect an asset a spouse would have to enter the marriage with that asset or sign a Marriage Contract. A Marriage Contract gives spouses the freedom to modify the standard rights set out in the law, before marriage, during marriage or at separation. The freedom to contract on these issues is still constrained by the law, but unlike custody/access and child support, spouses have significant freedom to divide property in the way they determine is best for their family. No judge will know your particular personal situation better than you, so why leave it to the courts?
Sign a Marriage Contract, and protect what is most important to you.
Mark A. Epstein is a Contributor to Pursuit.ca, a car enthusiast, a husband and a father. He is also the Managing Partner of Epstein & Associates PC,
a full-service law firm with offices in Mississauga, Richmond Hill, Newmarket and Barrie www.epsteinlawyers.com/team/meet-mark/