Family Law - Frequently Asked Questions

Listed below are questions regarding family law in Ontario.

PLEASE NOTE: We cannot provide legal advice to people who are not our clients. The following is not legal advice but provides general information about family law in Ontario. You should not rely on this information to determine your legal rights and obligations. We strongly recommend that people with specific legal concerns obtain legal advice from a lawyer. If you would like to retain us to provide you with specific legal advice, please contact us at info@nelligan.ca or 613-238-8080.  

Q - I read with much interest your article entitled Dividing your Property after Separation.

With regard to this final paragraph: "Married spouses can opt out of the property sharing regime imposed by the Ontario Family Law Act. They can do this by entering into a marriage contract under which the spouses agree that they will not share property or that they will share property in a different manner." 

I am unsure if such a marriage contract would also apply to a Matrimonial Home. 

Or does the Matrimonial home always get split 50/50?

A - In Ontario, a marriage contract can apply to the matrimonial home. For example, a marriage contract can provide for the matrimonial home to be excluded from the property sharing regime or for other credits to be provided with respect to the home.  

A marriage contract that specifically provides for different treatment of the matrimonial home may be particularly important where one spouse owned the matrimonial home on the date of marriage. Without a marriage contract that provides otherwise, a married spouse is unable to claim a deduction for the value of the matrimonial home on the date of marriage.  

Q - Can a person have a child support obligation to a child that isn’t theirs?

A - Yes. In Ontario, a person who has demonstrated a settled intention to treat a child as a child of his or her family has an obligation to support the child.

Q - Can you please tell me if an inheritance used to purchase the matrimonial home is considered to be excluded property?  Would this be an exception to property sharing?

A - The Ontario Family Law Act provides that certain property owned by a married spouse on the date of separation is excluded from that spouse’s net family property. This is referred to as excluded property. Excluded property is not part of the equalization of family property on a separation between married spouses.

The Ontario Family Law Act provides that excluded property includes property owned on the date of separation, other than the matrimonial home, that was acquired by gift or inheritance from a third person after the date of marriage.

This means that an inheritance that, as of the date of separation, is invested in the matrimonial home is not excluded property under the Act.

It may be excluded, however, if the spouses have entered into a valid marriage contract that provides for the inheritance to be excluded, even if it is invested in the matrimonial home.

Q - Is the matrimonial home deemed to be divided 50/50? Can my spouse argue that he brought more into the marriage than I did so that there is not an equal 50/50 split of the matrimonial home?

A - The presumption under the Ontario Family Law Act is that a married spouse is entitled to an equalization payment based on one half of the difference between the respective net family properties of each spouse. It is an equalization payment based on net family property, not a right to divide each asset 50/50. 

Given this, a married spouse isn’t necessarily entitled to 50% of the matrimonial home. The spouse is entitled to an equalization payment, which will be based on the difference between the respective net family properties of each spouse, which will include the value of each spouse’s interest in matrimonial home.  

The equalization calculation is also based on the value of each spouse’s net worth at the date of marriage, and whether they have any excluded assets.

I strongly recommend that you get legal advice from a lawyer with expertise in family law - they can give you clear advice on your particular situation to make sure you have a clear understanding of your rights and obligations.