Tuesday, April 12, 2005

FAQ regarding property issues

PROPERTY ISSUES AND FILLING OUT FINANCIAL STATEMENTS

In General


Many people assume that in Ontario, matrimonial property issues are resolved with a couple getting "50/50" of the total property the parties own. Many people also assume that the equalization of property scheme applies to common law couples as well as married people.
Neither is true. Ontario has an equalization of property scheme, which is different from actually dividing up the property equally between the parties. IT APPLIES ONLY TO MARRIED PEOPLE (see my FAQ regarding common law relationships).


In Ontario, property equalization is figured out by having each spouse disclose all assets and debts to come up with a net worth figure (called your Net Family Property). The spouse with the higher Net Family Property (or NFP), pays the spouse with the lower one an equalization payment equal to one half the difference between the two NFP’s. For example, if you have an NFP of $100,000, and your spouse has an NFP of $50,000, you would owe your spouse one-half the difference between $50,000 and $100,000 - or $25,000, to equalize your NFP’s. As you can see, having a low NFP will reduce what you owe your spouse, or may increase what is owed to you. You cannot go below zero with your NFP. If your NFP is a negative number, you will have to put "zero" on your financial statement.


The equalization scheme means that you usually get to keep whatever is in your name, and your spouse keeps whatever is in his or her name, including pension plans and RRSP’s, as long as you can pay your spouse the equalization payment owing. If you can’t, you may have to transfer assets, such as RRSP’s, to your spouse to make up the equalization owing. Joint assets are either sold, and the proceeds divided, or one spouse buys out the other to keep the joint asset.


Exclusions and Deductions


Pre-marriage property:


There are some exclusions and deductions to your NFP that are very important. You are allowed to deduct the value of all pre-marriage property, with the exception of the matrimonial home. This means that if you owned an asset, such as an investment, or real estate other than the matrimonial home, or even household furnishings, and you can establish a value as of the date of your marriage, you can deduct those values from your Net Family Property. You don’t have to have the item at the date of your separation. You just have to remember what you owned on the date of your marriage, and be able to establish a value for it.


Debts


You can deduct the value of any debts you owed as of the date of your separation. This includes credit cards, lines of credit, mortgages, private loans, and the like. It just has to be money you owed on the date of your separation, and you need to be able to prove you owed it. Loans from your parents or other family members may or may not qualify as deductions, depending on the documents you may have signed with your parents at the time the loan was given. Parental loans are assumed to be gifts unless you can establish otherwise.


Gifts and inheritances


If you received a gift from any third party (that means anyone other than your spouse) during your marriage, you can deduct it in its entirety from your NFP - UNLESS YOU USED THE MONEY TO PURCHASE THE MATRIMONIAL HOME OR PAY OFF A MORTGAGE AGAINST IT, OR TO DO ANY RENOVATIONS RELATED TO THE HOME. If you did, you can’t deduct the gift. Another exception is gifts from third parties that are put into the joint names of the spouses. For example, if your mother gives you $30,000, and you put it into your name and your spouse’s name jointly in a bank account, you can only deduct your half, and not the entire gift.

Insurance payments for personal injury


If you were injured, and received damages for your injury (most often through an insurance policy), you can deduct this money provided you have not used it towards the acquisition or maintenance of the matrimonial home.


Pre-marriage debt


If on the date of your marriage, you had a negative net worth (you owed more money than the assets you owned), and at the end of your marriage, on the separation date, you own more than you owe, the pre-marriage debt will act to increase your NFP. The theory is that if you started the marriage in the red, and are now in the black, you have profited by having your debt retired during the marriage.

The Matrimonial Home


The Ontario Family Law Act defines the matrimonial home as being the residence (or residences) you are living in at the date of separation as a married couple. If you lived in one home, sold it, and purchased a second home, the previous home is not a matrimonial home. Only the home you were living in on the separation date is your matrimonial home.
It is possible to have more than one matrimonial home. The family cottage may be a matrimonial home, too, for example, if it is used seasonally by the couple.
It is important to know whether your residence is a matrimonial home, because such homes are treated differently from other property under the Family Law Act.
Matrimonial homes cannot be excluded from your NFP as pre-marriage assets, even if one party was on title alone at the date of marriage.


Both parties have an equal right to possess the matrimonial home (although it may be that only one party owns it).


You cannot sell or mortgage the matrimonial home without the written consent of your spouse.
Inherited money that is used to buy a matrimonial home, to pay down the mortgage, or to renovate cannot be excluded from your NFP.


Filling out your financial statement


Whether you are going to court or not, you will probably be filling out a sworn financial statement in order to settle your affairs with your spouse.


A sworn document tells the world that you have reviewed the document, and that to the best of your knowledge, the facts in it are true. It places a very high standard of truth telling on you. You can be cross-examined on the contents of the document if the matter goes to court, and the court will be entitled to make adverse findings against you if you have not told the truth in the document.


The financial statement is divided into two parts: income and expenses and property. In most cases, you need to fill out both parts.


Income and expenses:


You need to provide me with your tax returns (and Notices of Assessment if at all possible) for the past three years, and a recent paystub, as well as some proof of your income to the date of the statement if your paystub does not show year to date income. If you have a new partner, and spousal support is an issue, then you may need to reveal what your new partner makes, and what proportion of the household expenses he or she pays, as well as how many children your partner has, as per the appropriate boxes on the financial statement.


Fill in your monthly expenses as best you can. Don’t bother to total them. I will do that for you. Make sure they are expenses that you actually pay, and not ones that a new partner or someone else pays for you. Be sure to include monthly debt payments in the appropriate line. Be as accurate as you can.


Property and debt:


This portion of the statement is divided into three columnms - date of marriage, valuation date, and statement date.


The date of marriage asks for the value of your assets or debts on the date of marriage. The valuation date asks for the value of your assets and debts as of the date of separation. The statement date asks for the value of your assets and debts as of the date you are writing the statement.


Put in the total value of the matrimonial home if you own it alone, put in half the value if you own it jointly with your spouse or another person, and put in nothing if you don’t own it at all.
You and I will discuss how specific you need to be in detailing the value of household goods. Often, if the parties have already agreed on the division of these, it is not necessary to include a detailed value for them. You should put in the value of your vehicles, boats and other like items no matter what, however.


If you have an actuarial appraisal done for your pension plan, you can include its value. Pensions are often big assets, and merit special consideration. You and I will discuss your pension value in some detail. Be sure to include a value for all of your RRSP’s, money in the bank,
and other like assets in the appropriate box. Remember that stocks and bonds (including Canada Savings Bonds) are assets, and you must include them on your statement.


If your life insurance has a cash surrender value, include that in the appropriate box under life insurance. If your policy is term insurance, just include the "face value", and indicate who the owner and beneficiaries are.

Some assets may be difficult for you to place a specific value on (such as stock options, or real estate that has not been appraised). Give me as much information as you can about such assets, and then we will have to discuss whether to have them valued by an expert.


It is important that you complete your financial statement as accurately as you can. Please try to provide statements for all assets and debts wherever possible, including statements of your investments, credit card statements, and the like, as of the date of your separation.


MARY-JO MAUR
Barrister & Solicitor
151 Wellington Street #1
Kingston ON K7P 1Z4
mary-jo.maur@bellnet.ca

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