Pay attention to pre-marriage assets when equalizing property
Section 4(1) of the Family Law Act provides, in part, that the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage, is excluded from net family property. Therefore, if you owned property before the marriage, that property should be deducted from the equalization of the property you acquired during the marriage. However, the spouses will share any increases in the value of such property that accrued during the marriage.
If you owned property at the date of marriage that you want to exclude from equalization, you have to prove the value of that property at the date of marriage as the onus of proving a deduction or exclusion from net family property is on the person claiming it. Meeting the onus of proving an asset at the date of marriage will depend on various factors, including the credibility of the person seeking the deduction, any documentary evidence tendered, and whether the other spouse contests the evidence offered in support of the deduction.
The matrimonial home is an exception to the rule that property owned at the date of marriage is deducted from net family property. As such, if you brought a home into the marriage that became the home that you and your spouse ordinarily occupied, you cannot deduct the value of the home at the date of marriage. Interestingly, there are many cases where a court has determined that if a matrimonial home is brought into the marriage and then subsequently sold and replaced by another matrimonial home, the value of the first home can be deducted from net family property.
The rules around pre-marital assets and property equalization are complex and can have a significant monetary impact. If you have questions about property equalization and reside in the Guelph/Kitchener area, please contact Purves-Smith Law for a consultation.