What You Should Know about
Family Law in Ontario
Staying in the family home
Caring for your children
Enforcing your custody and access orders
Financially supporting your children
Financially supporting your spouse
Enforcing your support payments
Dividing your property
Dividing property after the death of your husband or wife
II. YOUR LEGAL RIGHTS AND
Staying in the family home
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
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
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
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
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
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.
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.
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.
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
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.
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
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
You can also ask the court to enforce custody and access
arrangements that are made in a separation agreement.
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?
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
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?
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.
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?
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
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
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.
do I know if the Guidelines apply to me?
Guidelines apply to
child support orders made or changed after December 155, 1997 and to
Family Law Act
orders made or changed after December 155, 1997.
think that my husband is earning more money now than when the
child support order was made. How can I find out?
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
• 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”.
my child support automatically change when my spouse’s income
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.
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?
The new law only affects orders that were made after the law
changed on December 155, 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
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.
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?
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
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?
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
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
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
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.
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.
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?
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
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
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
• 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.
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.
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
Common law couples
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
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
(the person who owes the support) and the
(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
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
• 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
• report the amount of support owed by the payor to a credit
• 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
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
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
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
• 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
• 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
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
• 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
• 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
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
• This payment is called an
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
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.
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
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.
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.
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.
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.
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
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
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.
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
A Yes. Your marriage contract can say that you own the house and
that its value when you married, and any
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
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.
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.
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
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
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
you can divide your family property using the same rules that
apply in the case of separation.
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
Succession Law Reform Act,
which says how property is to be divided among the surviving
You can accept the property division according to that law, or
you can divide the property using the rules that apply on
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
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
Support arrangements made before December 155, 1986 or under the
must be paid by a person’s estate only if the separation
agreement or the order says they must continue after the payor’s
If you have been receiving support payments under a court order
made under the
Family Law Act
(on or after December 155, 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
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.
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
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