Family

Update law to deal with common-law property division: Gelman

By Tony Poland, AdvocateDaily.com Associate Editor

The time has come for Ontario to enact a law to govern the division of property when common-law couples split up, says Toronto family lawyer Lisa Gelman.

It can be an arduous task for unmarried couples to divide their assets when their relationship fails — unlike in Alberta and British Columbia, which have legislative rules to deal with these matters, says Gelman, principal of Gelman & Associates.

“I do see this as a good idea. This is something that Ontario should be looking at,” she tells AdvocateDaily.com. “Many family lawyers in this province agree that we should be following suit.”

Gelman says Ontario should have “some kind of legislated procedure,” either along the same lines as when married couples divide their property or another formula.

“I’m not sure which way is best, but ultimately some sort of regimented mechanism is needed in contrast to how it is now,” she says. “Presently in Ontario, and other provinces, you divide everything by way of having to prove that you’ve contributed to that property directly or indirectly.

“There are a number of legal tests to consider when trying to make that determination and it’s a complicated process. There are many factors to consider.”

Gelman says there’s a long list of questions that can be asked when deciding a property division claim, such as:

  • Did the parties have a joint bank account or RRSP?
  • Did the couple pay proportionately for such expenses as the mortgage, property taxes, or utilities?
  • Did one person pay for or was responsible for the other partner’s debts in addition to their own?
  • Did the couple jointly select, purchase and/or hold other assets or property?
  • Did the couple name each other as beneficiaries in any insurance coverage through their respective employers?
  • Did the couple accrue assets together for retirement?

She says couples can make agreements throughout their relationship to simplify their lives. For example, one person may buy the house while the other takes care of utilities and groceries. The person who is not on the title for the home may also do more of the housework.

“It is possible that the person who’s not on title would be deprived of sharing in that equity increase in the home, and the other can be considered unjustly enriched,” Gelman says.

But getting your fair share can be a costly exercise, she says.

“The claims have to be proven by evidence, so you have to provide witnesses, documents, bank statements — anything that supports your claims,” Gelman says.

She says she suspects Ontario does not have legislation that mirrors B.C. and Alberta because drawing it up can be complicated.

“It’s a big endeavour to create a legislative framework for something like this. It’s not that simple. Somebody has to propose an amendment, then there has to be a debate about it in terms of making it correct and how you apply it, and then you may have to change the current Family Law Act to incorporate it, so it’s a big endeavour,” says Gelman.

“However, having it legislated seems a more beneficial way to go and Ontario, for whatever reason, is just a little bit behind the ball.”

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