Dividing family property is often a contentious issue when couples divorce, and it can be a matter for dispute when common law partners separate. As with all matters pertaining to family law, negotiation is usually a top strategy people use to reach an equitable resolution.
Unfortunately, negotiation is not always successful, and sometimes, you must allow a judge to make decisions. The role of the court in Toronto asset division depends on whether you are legally married or have a common law relationship. In either case, The Riley Divorce & Family Law Firm could help you achieve your goals with the assistance of a skilled property division lawyer.
The Divorce Act, a federal law, bestows jurisdiction over divorce and property division to the Superior Court of Justice. When your divorce is final, this court will issue the decree. The court oversees the asset equalization process for married couples but does not take an active role in most cases. You will attend a case conference after the application for divorce is filed if negotiations on asset division and other matters are not complete. The judge is unlikely to make any substantive rulings at the case conference but may have suggestions on resolving outstanding issues.
As the case proceeds, you may have one or more settlement conferences with the judge. If you and your spouse do not appear to be making progress, the court may refer you to mediation, arbitration, or another form of alternative dispute resolution (ADR). In rare cases when couples cannot reach an agreement in Toronto, a divorce trial will ensue, and a judge will make final decisions on outstanding issues.
The court will suggest ADR before scheduling a trial on asset division. Participating in ADR allows you to retain more control over the outcome than going to trial.
Mediation allows you to negotiate with your spouse with the help of a neutral third party who keeps the conversations civil and productive. Mediators are trained to ensure that unbalanced power dynamics do not disrupt the process and interfere with achieving a fair resolution. Arbitration is a more formal procedure where both parties present their cases, and the arbitrator decides on a property division scheme they believe is fair under the circumstances. Both sides agree to honor the arbitrator’s decision.
When you reach an agreement through mediation or an arbitrator, your Toronto lawyer submits it to the court. The agreement or arbitration order will be incorporated into your divorce decree as an enforceable court order.
The Ontario Family Law Act s.5(1) calls for two married people to share the profits of their marriage equally. It offers no such protection to people with common law relationships. If you have a common law marriage, you are entitled only to the property you brought into the relationship and the property you acquired in your name during the relationship.
However, sometimes, one partner contributes significantly to the maintenance of the other partner’s assets or increases its value. In that case, the partner who owns the asset might be unjustly enriched, and the partner who contributed might see no reward for their effort. A common law spouse in that situation could seek constructive trust over their spouse’s assets. They would bring an action in court, the judge would hear evidence, and decide whether the non-owning spouse deserves to benefit from the owning spouse’s assets. These are complex issues, and litigation is a stressful process, so always consult a Toronto legal professional before deciding to take the matter to court.
The court’s role in Toronto asset division may be negligible or determinative, depending on you and your circumstances. Most couples resolve their asset division issues without the court’s active intervention.
Talk to the knowledgeable lawyers at The Riley Divorce & Family Law Firm to discuss how best to resolve asset division disputes. The legal team is available anytime to address your questions and concerns. Call now to schedule a consultation.
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