To understand why it can be more difficult to change an unfair order for property division than to change an order for child support or spousal support, it is important to understand a little about Ontario Law on property division after a marriage. After that explanation, I will explain how to go about changing a court order made on consent (meaning the parties agreed to it) because of a mistake.
When married spouses divorce or separate, one of the main issues that commonly arises is property division or, as it is known in Ontario, equalization of net family properties. When married spouses separate, they are entitled to an equalization of their net family properties under Part I of the Family Law Act. This means that married spouses are entitled to divide the increase in their net worth that arose during the marriage. To understand how “equalization” works after a marriage, listen to his podcast. However common-law or cohabiting spouses do not have a right to an equalization or division of property on separation. To understand what they can do to divide or share their property, listen to this podcast about common relationships and listen to this podcast about common law separation and property division.
This page relates to how you change your divorce order, or other Family Court Order dealing with property. Spouses who arrive at a settlement regarding property can either have the settlement finalized as a court order or a separation agreement. If you plan to have the settlement reduced to a judicial order, you should watch the video below on how family court works. If you plan to have a separation agreement, you should listen to this blog on how to create a valid and enforceable separation agreement. If you need to change a separation agreement, then read this page on getting out of a bad separation agreement.
In Canada, spouses are eligible for a divorce after the occurrence of one of three triggering events: adultery, cruelty, or living separate and apart for more than one year. Once a court is satisfied that one of these events has occurred, a spouse is entitled to a divorce, even if the spouse does not consent. In practical terms, most spouses are divorced after living separate and apart for one year. Adultery and cruelty are very hard to prove and these claims would most likely require a trial for their resolution. Given that it would take the average case more than a year to reach a trial, most spouses divorce on the basis of living separately and apart for a year. Once a court grants a judgment for divorce, the spouses are divorced on the 31st day after the judgment.
If you aren’t sure as to the best way to resolve your issues after separation, you should listen to this podcast.
Where a party wishes to change a court order or separation agreement, generally they have to demonstrate that a ‘material change in circumstances’ has occurred. If the change sought is in relation to child support, the party seeking the change must demonstrate a material change in relation to the needs, means or circumstances of the child. For spousal support, the change must be in relation to the needs, means or circumstances of the party seeking the variation. In terms of an order or agreement regarding equalization, the ‘material change’ test does not apply. Equalization is based on what the spouses had on the date of marriage and the date of separation and that does not change over time because it is based on what the spouse owned on two fixed dates in the past. Since these facts do not change, the procedure of a motion to change is not appropriate.
If a party wishes to change an order related to equalization, they have to rely on Rule 25 of the Family Law Rules, which allows a court to set aside an order where the order was obtained by fraud or contains a mistake. However, it is extremely hard to prove fraud as you will have to prove that your spouse intended to mislead the court. If you believe that your ex has committed fraud, you should speak to an experienced family law lawyer now. These are extremely difficult claims to make and you should only seek advice from a lawyer with experience in this area.
If you and your spouse made a mistake in calculations that you gave to the judge to get your court order to equalize your property, or if you had the value of one or more assets wrong, then you can ask for a correction to the Order under Rule 25. There may have been a “mistake” if one or both spouses did not provide proper, accurate or adequate financial disclosure. This is a reason why proper financial disclosure is very important in family court. You may get into a bit of an argument with your ex if one of you thinks there was a mistake and the other does not. The judge has to be convinced that there was a mistake in order to change the order.
There is another important consideration. Section 7(3) of the Family Law Act says that a judge cannot make an order with respect to equalization if the parties have been separated for more than six years, divorced for more than two years, or one spouse died more than six months ago, whichever is first. So, your spouse (or his or her estate) may tell the court that the order cannot be fixed if those time limits have passed. If the time limit has passed, then you really need to speak to a good family lawyer to see if anything can be done.
To learn even more about equalization and how to change a court order, you may want to get a copy of this easy-to-understand book on the basics of Ontario Family Law as a paperback, or as a $9.99 e-book for Kindle, Kobo, or iPad/iPhone/Mac. You may also want to listen to this podcast or watch this video. You can also use the search on the right to find lots more articles about marriage and divorce, and family law land family court issues on just above every topic.
After separation, it is always better to do things right the first time. Fixing things later can be complex and difficult. To make sure you do the right things the first or second time, around, you really should discuss your particular case with an excellent family law lawyer. Contact Certified Specialist in Family Law (and author of the book to the left), John Schuman, by emailing him, calling 416-446-5847, or using the contact form below. We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).
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You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of parenting cases (parenting time and decision making), child support, spousal support, property division, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback. But to understand how the law works precisely in your situation, it is always best to speak to a good Family Law Lawyer.
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