Staying in the family home

The family home is a special place. It is where you live and where your children feel most comfortable. If you own your home, it may be the most expensive and valuable thing you own.

If you are married, both of you have an equal right to stay in your home unless a judge decides that one of you must move out.

Since both of you have a right to stay in your home, neither of you can sublet it, rent it, sell it or mortgage it without the other’s permission. This is true even if your lease is in only one of your names or if only one of you owns the home.

When you separate, both of you may want to stay in the family home. If you cannot agree, you will have to go to court to have the court decide who can stay in it.

It may be that, after the separation, neither of you will be able to afford to stay in your home.

If you have children, the person who has custody of the children will most often be the one who stays in the family home with the children. This helps children adjust to their new family situation in a place and neighbourhood that they already know.

Common law couples

_Q Before we lived together, I owned a house. The house is still in my name and I still pay the mortgage. Marie pays for repairs and upkeep. If we split up, does she have a right to stay in the house?

_A Maybe. If a judge orders you to pay support to Marie or for your children, the judge can also decide that Marie can stay in the house. It doesn’t matter who owns the house. Marie can also ask you to pay her back for the money she spent on repairs to the house. Remember, if you and Marie marry, your rights change.

Caring for your children

Parents are responsible for their children. When a family is living together, both parents share the responsibility for their children’s upbringing, education and everyday lives. This applies whether the parents are married or not.

When you separate, you have to arrange for the care of your children. They need a place to live, food and clothing. Most important, they need to feel loved and supported even though their parents are not living together.

The best thing you can do is to work out together how you are going to care for the children after you separate.

If you can work things out together, you can write out your arrangements in a parenting plan. A parenting plan can include when each parent spends time with the children and who makes major decisions about them. A parenting plan can be an informal arrangement between the two of you, or it can be part of your separation agreement or court order. Informal arrangements can be difficult to enforce.

If you cannot agree on who should have custody of the children, you can go to court to have a judge decide. The judge may ask for an assessment by a social worker, psychologist or psychiatrist. The person will speak to each of you, to the children and sometimes to others. He or she will write a report for the court, recommending where the children should live and when they should see the parent who does not have custody.

The judge must think only about the children’s best interests when making a decision about custody. The judge will look at all information heard in court and will consider where the children are living right now. If they have been living with only one parent for a while and things are going well, the judge may not want to change that.

Custody: If your separation agreement or a court order gives you custody of your children, the children will live with you. You have the right to make decisions about their care, their education, their religious instruction and their welfare — unless the agreement or court order says otherwise.

Joint Custody: Parents who have joint custody of their children share the right to make decisions about their care. The children may spend half the time with one parent and half the time with the other or they may spend more time living with one parent than with the other. Both parents remain involved in making decisions about the children. For joint custody to work, parents have to be able to communicate with each other and to co-operate even though they are not living together.

Access: If you do not have custody of your children, you have a right to spend time with them unless the court decides that this is not in their best interests. Access arrangements can be written out in detail in a parenting plan, separation agreement or court order. The agreement or order could say, for example, that the children would be with you every other weekend.

Or, your access arrangements could be open, letting you work out arrangements with the other parent in a more flexible way. It is difficult to enforce this kind of access arrangement.

You also have the right to receive information about your children’s health, education and general situation. You do not have a right to be part of decision-making about these things, unless you have joint custody of your children or your separation agreement or court order says that you will share in making decisions.

A court may refuse you access to your children if there is a fear that you will harm them or harm the parent with custody, or if there is a fear that you will not return the children to the parent with custody.

Supervised Access: Where there are concerns for the safety of the children, and/or a parent, the parents can agree, or the court can require, that access visits with children be supervised. This means that someone else must be present when you visit with your children. Sometimes the parents can agree on a friend or relative who can supervise visits. Parents can also pay a professional, such as a social worker, to supervise visits. In many communities across Ontario, there are government funded Supervised Access Centres staffed by trained professionals and volunteers. On arrangement with staff, families can attend the centre for supervised visits or for supervised drop off and/or pickup of the children for access visits.

Enforcing Custody and Access Orders

If a court order for custody or access is not being obeyed, you can ask the court to enforce the order. The court can try to get parents to respect the custody and access arrangements made for their children. If they still refuse, the court can fine them or even send them to jail. If there are serious problems with custody and access arrangements, the court can change the arrangements.

You can also ask the court to enforce custody and access arrangements that are made in a separation agreement.

_QOur separation agreement says that my wife has custody of our children and I have access. I don’t think my wife is taking good care of the children. I think the kids would be better off living with me. Can our separation agreement be changed?

_AMaybe. You can try to reach a new custody agreement with your wife. If that is not possible, you can go to court to ask the court to give you custody of your children. The court can change the custody and access arrangements in a separation agreement if it thinks it would be in the children’s best interests to make a change.

_QWhen my husband and I split up last year, I stayed in the apartment. The children are with me and see their father once in a while. Do I have legal custody of my children?

_ARight now, you have what is called de facto custody. This means that, in fact, you have custody of your children and have been making decisions about their care and upbringing as if you had legal custody. Your husband has accepted this arrangement. It is very unlikely that a court would make changes to your situation.

However, it will be more difficult for you to enforce your custody rights if you do not have them clearly set out in a court order or agreement, especially if you and your husband disagree on what the custody arrangements have been.

You will have legal custody when you and your husband sign a separation agreement that says that you have custody or when a court says that you do.

_QAfter a lot of arguments and a lot of time in court, I got custody of my children. Their

father has access. His family lives outside of Canada. I am afraid he may take the children and go to his family’s home and I will never see them again. What can I do?

_AIf your husband takes the children away from you, he is committing a serious crime. The police can arrest him and charge him with child abduction. You can do things now that will make it harder for him to leave Canada with the children. There are also international laws to help get children back from many countries. Speak to a lawyer.

If you think the children are about to be taken out of the country, call the police right away.

Financially supporting your children

Both parents have a responsibility to financially support their children. They share this responsibility when they are living together and continue to share it after they separate. This responsibility applies to all parents, regardless of whether they were married, living together or have never lived together.

The parent with custody of the children has to take care of them, buy food and clothes for them, pay for outings and activities, look after all their day-to-day needs and keep the home running.

The parent who does not have custody of the children usually has to pay the parent with custody money to help cover the costs of taking care of the children.

The amount of child support to be paid in Ontario is set out under the Child Support Guidelines. Under the Guidelines, child support payments are based on the income of the person who does not have custody and the number of children that need support.

In some cases, the court can order an amount that is higher or lower than the guideline amount.

• For example, the court can award more than the guideline amount where the child has “special expenses.” These might include child care expenses, tuition for private school, fees and equipment for hockey, or the cost of getting braces, for example.

• In very limited circumstances, the court can also award less than the guideline amount where paying this amount would cause “undue hardship” for the parent required to pay. In order for the court to consider awarding less than the guideline amount, the parent asking for the decrease would have to prove hardship and prove that the standard of living in his or her household is lower than the standard of living in the child’s household.

_QHow do I know if the Guidelines apply to me?

_AThe Guidelines apply to Divorce Act child support orders made or changed after May 1, 1997 and to Family Law Act orders made or changed after December 1, 1997.

_QI think that my husband is earning more money now than when the child support order was made. How can I find out?

_AUnder the Guidelines, the person entitled to child support can ask the person paying support for information about his or her income once a year. The request must be in writing. The person paying support must provide financial information including:

• a copy of his or her three most recent income tax returns and notices of assessment and reassessment for those returns;

• information regarding how that person is currently making a living. For example, if the person is an employee, he or she must give recent pay-stubs; if he or she is self-employed, he or she must give financial statements of the business, and a statement showing all money paid to people or companies related to the person paying support. There are other requirements for someone who owns an incorporated company or who is a partner in a partnership;

• a statement of any income from a trust and copies of the trust’s financial statements; and

• current information in writing about any “special expenses” or “undue hardship”.

_QDoes my child support automatically change when my spouse’s income changes?

_ANo. If his or her income changes, the two of you may be able to agree on a new amount of support. However, if you can’t agree, you will need to return to court to have the new amount set. This amount will be determined under the Guidelines based on your spouse’s new income.

_QI have an order for child support that was made in 1993. One of my friends told me that the tax laws that affect child support payments have changed. Do these changes affect me?

_ANo. The new law only affects orders that were made after the law changed on May 1, 1997. The law now says that child support is not a tax deduction for the person paying support, and that the person receiving child support does not have to pay tax on the support payments.

If you and the other parent would like the new tax rules to apply to your existing child support amount, you can both send a form to the Canada Customs and Revenue Agency indicating that you want the new tax rules to apply to you.

If you go back to court to change your old order, the new tax rules will automatically apply to your new order.

_QMy child support order was made under the Guidelines and does not say anything about matching payments to the cost of living. Inflation could mean that my support money isn’t worth as much in a couple of years. Can I change this?

_AThe Child Support Guidelines do not adjust support payments for increases in the cost of living. Payments are based on the income of the parent who pays support. If that parent’s income goes up, you can ask for an increase in your child support payments.

_QI have been paying child support fairly regularly and now my wife is starting to play games about when I can see my kids. Last weekend I went to pick them up and she said they’d gone to their grandmother’s for the day. Why should I pay support if I don’t get to see my children?

_AThe law is very clear. You owe child support no matter what happens with your access arrangements. Child support is money you pay to help share the cost of taking care of your children. But you do have a right to have your access arrangements respected. Speak to your lawyer, a mediator, or a family counsellor about the trouble you are having getting to see your children. Everyone will benefit if you can work things out with your wife without having to go to court.

Common law couples

_QMartine and I are not married. We have lived together for eight years and have twins who are four years old. Martine is tired and fed up and wants to move out on her own. We have agreed that I will have custody of the twins. Will Martine have to pay child support?

_AYes. The amount of support will be set under the Child Support Guidelines. The amount will be based on Martine’s income. Children have a right to financial support from both their parents, whether or not their parents are married. Common law couples have the same responsibilities to their children as married couples do.

Parents who have never lived together

_QA while ago I had a short relationship with Joan. We never lived together. We just dated a few times. We broke up when I found out she was dating someone else at the same time as me. She just had a baby boy, and she says it’s mine and she’s taking me to court for child support. I don’t think I’m the father, and even if I am, I don’t see why I should have to support him.

_AIf the child is yours, you have a legal obligation to support him, even though you and Joan were never married or living together. You would also have a right to access to your child so that you could spend time with him. However, if you don’t think that he is your child you can request a paternity test. If Joan won’t agree to one, you can ask the court to order the paternity test.

Step-parents

_QI was a single mother, looking after my three-year-old son, when I married Jason five years ago. We all got along great until a few months ago. Now I think we’re headed for a separation. If we do split, does Jason have to pay any child support for my son?

_AIf Jason accepted the responsibilities of being a parent to your son, you have a right to ask him to pay child support, even though he is not your son’s biological father. A judge could decide if Jason had, in fact, treated your son as his own and had accepted the responsibilities of being a parent. If so, the judge would then look at Jason’s income and set the support according to the Guidelines.

 

Financially supporting your spouse

The law expects adults to be self-sufficient and to look after their own needs to the best of their abilities.

During a marriage, one person often spends more time looking after the home and the children. That person does not have a chance to earn a lot of money in the workforce, or to become more skilled and more highly paid in a trade or profession, or to pay into a pension plan over a long period of time. When a marriage ends, that person is at an economic disadvantage.

To decide on the amount of support that should be paid by one spouse to the other, the law says that judges must look at how much the person asking for support needs to live, and how much the other person can pay. A person may claim support to help him or her become financially self-sufficient or to keep from ending up in serious financial difficulty.

In general, people who have been married for a short time will only be able to get support on a short-term basis. Support payments may give a person a chance to go back to school or train for a job.

After years out of the workforce or years in low-paying jobs, some people may never be able to become financially self-sufficient. Their spouses may have to pay long-term support for them.

Here are some of the things that are taken into account:

• the age and health of the couple;

• available employment opportunities;

• the effect being married had on employment opportunities;

• the contribution made to family care during the marriage;

• the contribution made to the other person’s career;

• the family’s standard of living before separation;

• the time it will take for the person to become self-sufficient; and

• the need to stay at home to take care of young children or adult children with a disability.

You can agree on the amount of support that will be paid and for how long it will be paid and include this in your separation agreement. If you cannot agree, you can go to court and let the court decide. Under the Family Law Act, you have two years from the date that you separate to go to court to ask for a decision about support for yourself.

_Q How can I figure out how much support to ask for?

_A You need to write down details of your income and expenses. List how much you spend on food and household expenses and things like transportation, medication, dentist bills, clothes, dry cleaning, haircuts, car expenses and insurance, home insurance, vacations, gifts, entertainment, pet food and veterinarian bills. All these expenses can be included when figuring out how much support you need.

_Q I am 55 years old. The court ordered my husband to pay me $500 every month. That is fine for now, but with inflation and the price of everything going up, I am worried that it won’t be enough in five years. Is there anything I can do?

_A Yes. You can ask the court to add a cost of living adjustment to your court order. This ties your support payments to the Consumer Price Index for the area where you live. Your support payments will then change every year to match the rate of inflation.

Common law couples

_Q We’ve lived together for ten years. Most of that time, I’ve been at home taking care of our four kids. If we separate, can I get support for myself?

_A You can ask for support. Common law spouses have a right to ask for support for themselves if they have lived together for more than three years or if they have lived together for less than three years but have had or adopted a child together.

 

Enforcing your support payments

Automatic Support Deduction

            When a court orders a person to make regular support payments, the court also makes a support deduction order. The court sends the support deduction order to FRO and FRO writes to the person’s employer (or other income source) telling the employer to deduct the amount of the support from the person’s regular pay cheque. The employer must then send the money to FRO. FRO, in turn, sends the money to the person entitled to the support under the court order.

If your support arrangements are set out in a domestic contract, rather than a court order, you can still have your support payments processed through FRO. To do so, you must file your domestic contract with the court according to the procedure in the Family Law Act and the rules of court. Once the agreement is filed with the court, it can then be filed with FRO and FRO can collect your support payments for you through automatic support deduction.
 

Withdrawing from FRO

Some people do not want their support payments processed through FRO. If both the payor (the person who owes the support) and the recipient (the person who is supposed to receive the support) agree, they can withdraw from FRO. They can do so by sending a written notice, signed by both of them, telling FRO that they would like to withdraw their support order or domestic contract. FRO will close the case once it receives this notice. However, if the recipient is receiving social assistance and the support order is assigned

to the social assistance agency, the agency providing the social assistance must also agree to withdrawing the support order from FRO. You should confirm if any social service agency is involved and whether their consent is also required.

Enforcement of support payments that are not being made on time or in full

If your support order is not filed with FRO, and the support payments that are owed to you are not being paid on time, or in full, you can take legal action on your own behalf to recover the money you are owed. You can:

• request a default hearing, at which the payor must explain to a judge why the support is not being paid. If the judge is not satisfied with the explanation, the judge can order that support be paid. In extreme circumstances, the judge can send the payor to jail for failing to pay support;

• garnishee the payor’s wages and bring the payor’s employer to court if the employer disobeys or ignores the notice of garnishment;

• garnishee the payor’s bank account;

• seize the payor’s RRSP;

• register the support order as a charge on the payor’s house, other real estate or personal property; or

• file a writ against the payor’s property.

Bringing these legal actions may be time-consuming and expensive and you may need a lawyer to assist you. However, you do not have to enforce your support payments yourself. FRO can act on your behalf to recover the money that is owed to you. FRO can take all of the steps outlined above to collect your support payments. In addition, FRO can:

• request records containing information about the payor’s employment and financial circumstances and address from any person or public body;

• bring the payor’s employer to court for disobeying or ignoring a support deduction order;

• garnishee money owed to the payor by the federal government (including income tax refunds and Employment Insurance benefits);

• report the amount of support owed by the payor to a credit bureau;

• intercept the payor’s lottery winnings, if the prize is over $1,000 and the lottery was in Ontario;

• suspend the payor’s driver’s licence; or

• suspend the payor’s federal licences or privileges, such as a pilot’s licence or a Canadian passport.

If you have withdrawn from FRO, you can re-file your support order or domestic contract if you have problems with your support payments later and decide that you want FRO’s assistance.

You should be aware that FRO does its job best when you keep the office up to date. Always make sure that FRO knows your most current address and phone number, and if you find out that the payor has moved or has changed jobs, you should let FRO know, in case the payor has not notified the office.

In order for FRO to enforce your support payments effectively, it is also important that your support order or domestic contract be clearly written. For more information on this, you may find it helpful to refer to a booklet entitled “A Lawyer’s Guide” available from FRO.

 

Dividing your property

The law says that a husband and wife share responsibility for child care, household management and earning income during their marriage. In the eyes of the law, a marriage is an equal partnership. When a marriage ends, the partnership is over and property has to be divided.

To recognize the equal contribution of each person, the general rule is that the value of any property that you acquired during your marriage and that you still have when you separate must be divided equally, 50-50. Property that you brought with you into your marriage is yours to keep if your marriage ends. Any increase in the value of this property during your marriage must be shared.

There are some exceptions to these rules. The law allows you to keep some property that you have at the end of your marriage for yourself. This property is called excluded property. It includes:

• gifts you received during your marriage from someone other than your spouse;

• property that you inherited during your marriage;

• money that you received from an insurance company because someone died; and

• money that you got or that you have a right to get as a result of a personal injury, like a car accident.

The family home is another exception to the general rules. The law says that when your marriage ends, the full value of the family home must be shared even if one of you owned the home before you were married, received it as a gift or inherited it.

Unlike other types of property, you do not get to keep for yourself what the house was worth at the time of your marriage.

You and your spouse can agree to a different split. Or, in some circumstances, you can ask the court to divide things differently. The court can only divide property differently in very special situations and if a 50-50 split would be extremely unfair to one of you.

The legal rules that you have to follow to calculate the value of your property and divide it between you and your spouse can be complicated. It is a good idea to consult a lawyer about how the rules apply in your case.

The next section will give you an idea of how these rules work. Remember that this is only a description of the general rules. There may be other rules and exceptions that would apply to the facts in your case.

The first thing that you and your spouse must do is to separately calculate the total value of your share of the family property according to the rules set out in the law. You must be fair and honest when you do this. If you go to court, you must prepare a full financial report of all your property, debts and income. You must swear that it is accurate.

You can calculate your share of the family property using Steps 1-4 set out below:

Step 1: Find out the value of the property you had on the day you separated

• Your property is anything that is in your name or that belongs to you.

• You must list all your property, including property in other parts of the country and the world. For example, your list of

property might include your home, a business, a car, furniture, a sound system, clothes, sports equipment, jewellery, savings in bank accounts and retirement savings plans, and your right to a pension, even if you will only get the pension years from now.

• If you own some property together in both names, you each put half the value of the property on your list.

Step 2: Subtract the value of the debts you owed on the day that you separated

• Money owing on credit cards, the amount left to pay on your house and a car loan are all examples of debts.

• List them at their value on the day of separation.

Step 3: Subtract the value of property that the law allows you to keep for yourself

• This property includes gifts and inheritances received from someone other than your spouse during your marriage, money received from an insurance company because someone died, and money you got or have a right to get as a result of a personal injury.

Step 4: Subtract the value of property that you brought into your marriage less the value of debts

• Add up the value of all the property that you owned when you married.

• Do not include your family home, even if you owned it on the date of your marriage.

• Subtract all the debts you had when you married.

 

The final step will tell you if one of you owes the other any money.

Step 5: Find out if a payment is owing

• Compare the value of your share of the family property to the value of your spouse’s share.

• Subtract the smaller amount from the larger amount.

• Divide the difference by 2. This is the amount that the spouse with the larger share must pay to the spouse with the smaller share.

• This payment is called an equalizing payment.

Note: If a person has more debts than property, the value of his or her share of the family property is zero.

For instance, if you owed the bank $15,000 when you separated, and you have only $8,000 worth of property, the value of your family property is $0 for the purposes of calculating an equalizing payment.

_Q Our calculations say I am entitled to a payment of $5,000. Do I get this in cash?

_A Not necessarily. The payment can be paid in cash. It can also be made by giving you property worth $5,000. Or, an amount could be put towards your rent or mortgage every month until $5,000 is spent. How the payment will be made is one of the things that you can arrange in your separation agreement. Or, it is one of the things the court can decide.

_Q We each went to a lawyer and got some information and advice about how the law says our family property should be divided. Now we’ve come to our own agreement about things. Can our separation agreement divide things differently from the way the law says?

_A Yes. You are free to divide your property any way you want in your separation agreement. You should each have your own lawyer look over your separation agreement before you sign it. You cannot easily change your separation agreement later.

_Q I received a car as a gift from my father. I know that the law says that if we separate, I don’t have to share the value of gifts I received during our marriage. I have decided to sell the car. Once I sell the car, is the money I get for it part of the property I must share with my spouse if we decide to separate?

_A Not necessarily. If you keep the money separate, for example, in a savings bond, so that you can always trace it to the sale of the car, it will be excluded from the property you must share at the end of your marriage.

There is an important exception to this general rule that affects the family home. If you use the money from the sale of the car to pay down the mortgage on your family home or to renovate it, you must share the full value of the family home with your spouse if you separate. Once money is put into the family home it must be shared, even if the money came from a gift or an inheritance or other property that the law says you do not have to share with your spouse.

_Q It’s my wife’s fault our marriage is over. She started seeing another man and has decided that she wants out. Why should I have to share the value of my property with her now just so this new guy gets it?

_A Your wife’s new relationship has no effect on the division of property at the end of your marriage. The law on dividing family property has nothing to do with why your marriage has ended. The law sees a marriage as an equal partnership. When it is over, the financial benefits of the partnership have to be divided evenly and fairly. The calculations are made without looking at who is at fault or who is to blame.

_Q My husband has been paying into company pension plans for 32 years. I stayed home to look after the kids and now I am doing odd jobs for a little extra money. If we separate, do I have a right to share his pension?

_A Yes. In most cases, a professional financial consultant or actuary will have to look at your husband’s pension plan to establish its value. This amount is added to your husband’s share of the family property. Or, you and your husband can agree that when he starts receiving his pension, you will get a certain percentage of it. You should see a lawyer to make sure the paperwork is done properly.

Important: As soon as you separate, you are no longer recognized as a spouse under pension law. For example, if your husband dies after you separate, but before you reach any agreement, you do not have a right to a survivor’s benefit. You should make sure that your agreement or court order is clear about your rights to his pension.

_Q Last summer, my brother and I built an addition to my house. The addition cost $10,000 and added $20,000 to the value of the house. Now my wife and I are splitting up. Can I get the $20,000 back?

_A No. You have to share the full value of your family home with your wife. It doesn’t matter if you put more money or work into your home. There are some very limited exceptions to this rule.

_Q My parents left me their house when they died. I have been living in it for the last two years with my boyfriend. We are planning to get married and raise a family here. If our marriage doesn’t work out, I don’t want to lose the house to him. In our marriage contract, can we say that the house is mine no matter what happens?

_A Yes. Your marriage contract can say that you own the house and that its value when you married, and any increase in its value during your marriage, will be yours. But, your husband will have the same right as you have to stay in the family home if your marriage breaks down. You cannot put anything in your marriage contract to change this.

If your marriage ends, your husband may be able to stay in the house until you can agree to, or the court decides on, other arrangements.

_Q We live on a big dairy farm. Is the whole farm considered to be our family home?

_A No. Your family home is only the part of the farm where you live, the house and the small area around it. The rest of the farm is property like any other property. It is not covered by the special rules for family homes.

_Q I’m so upset by everything, I cannot cope with making lists of property right now. Do I have to do this right away?

_A You have six years from the day you separated to go to court to ask for a decision on the

amount of the equalizing payment. If you get a divorce, you may have less time. You would have six years from the day you separated, or two years from the date your divorce is final, to go to court, whichever date comes first.

_Q I am worried that now that I’ve moved out, all our family property will disappear before we have a chance to resolve things. I think my husband might get rid of it just to keep me from sharing in its value. Is there anything I can do?

_A Yes. You can go to court and ask the court to stop your husband from giving away the property. The court may tell him not to sell or dispose of the property or it can order that it be put in someone else’s care to protect it.

Common law couples

_Q We are not married but we’ve been living together for 15 years. If we split up, do we have to share the value of our property?

_A Maybe. Only married couples have an automatic legal right to half the value of family property. You can ask your partner to pay you back for your contribution to property that your partner owns. If your partner does not agree, you can go to court to make your claim. But the claim will be based on another area of law, not family law. Ask a lawyer for advice.

 

Dividing property after the death of your husband or wife

The law on dividing your family property on separation can be used to divide your family property after your husband or wife dies. There may be benefits to doing this.

You have six months from the time of your husband’s or wife’s death to file a document with the court stating that you wish to use these laws to divide your family property. You should see a lawyer before making a decision.

If there is a will

If your husband or wife dies leaving a will saying how his or her property is to be divided, you have a choice. You can take the property left to you in the will or you can divide your family property using the same rules that apply in the case of separation.

 Using these rules may be to your financial advantage if your husband or wife left most of his or her property to other members of your family or to other people.

You will have to make a list of all your property in the same way that you would if you separated. You must value your property according to what it was worth the day before your husband or wife died.

If there is no will

If your husband or wife dies without a will, there is a special law, the Succession Law Reform Act, which says how property is to be divided among the surviving family.

You can accept the property division according to that law, or you can divide the property using the rules that apply on separation.

Your right to stay in the family home

If your husband or wife owned your family home and left it to someone else, that person cannot claim your home the day after your husband or wife dies. You have a right to stay in your family home for 60 days. You will not have to pay rent during this time.

Continuing support payments after the payor dies

Your separation agreement can say that your husband’s or wife’s estate must continue to make your support payments after his or her death.

Support arrangements made before March 1, 1986 or under the Divorce Act must be paid by a person’s estate only if the separation agreement or the order says they must continue after the payor’s death.

If you have been receiving support payments under a court order made under the Family Law Act (on or after March 1, 1986), your husband’s or wife’s estate must continue to make support payments, unless the court order says something different.

If your order is made under the Divorce Act and does not say that your support payments continue after the payor’s death, or if you do not know what type of order you have, you should consult a lawyer.

The Family Responsibility Office (FRO) will not enforce a support order against the estate of a payor after FRO has been notified of the payor’s death.

_Q When my wife died, I received a death benefit payment from her life insurance company. I used the money to pay for funeral expenses. Now that I have had a chance to figure things out, I would like to divide the family property using the rules that apply to the sharing of family property on separation. Is it too late?

_A No. You can still use the rules that apply on separation to divide the family property. You must subtract the amount of the insurance payment from the equalizing payment you are to receive from your wife’s estate, unless she specified, in writing, that you can receive the insurance proceeds and the equalizing payment. You can ask the estate to reimburse you for the funeral costs.