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Family and Divorce Law
Ontario Equalization Deadline After Separation or Divorce (Video)
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Ontario Equalization Deadline After Separation or Divorce (Video)
In Ontario, a married spouse’s equalization claim must generally be started by the earliest of three dates: two years after a divorce or nullity judgment, six years after the spouses separate with no reasonable prospect of getting back together, or six months after the first spouse dies. That rule is in subsection 7(3) of Ontario’s Family Law Act. Missing the equalization deadline in Ontario can cost you your claim, and a court will extend the time only in limited circumstances. This guide and video explain what equalization is, how the deadlines work together, the matrimonial home exception, and what to do if you think a deadline has passed.
Watch: Ontario equalization deadlines
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What is an equalization payment?
When married spouses in Ontario separate, the law does not usually divide each item of property. Instead, it compares the growth in each spouse’s wealth during the marriage and equalizes it with a payment. Under subsection 5(1) of the Family Law Act, when a divorce is granted, a marriage is declared a nullity, or the spouses are separated with no reasonable prospect that they will resume living together, the spouse whose net family property is the lesser of the two is entitled to one-half the difference between them.
For a fuller explanation of how the calculation works, see our guide on how equalization of family property works in Ontario.
Net family property and the valuation date
Subsection 4(1) of the Act defines “net family property”. In simple terms, it is the value of everything a spouse owns on the valuation date, minus the spouse’s debts and other liabilities, and minus the net value of property (other than a matrimonial home) the spouse owned on the date of marriage.
The valuation date is the earliest of several dates listed in subsection 4(1). In most cases, it is the date the spouses separate with no reasonable prospect of resuming cohabitation. Other possible valuation dates include the date a divorce is granted, the date a marriage is declared a nullity, and the day before a spouse’s death.
Some property is excluded from net family property under subsection 4(2), such as certain gifts and inheritances from third parties received after marriage. Exclusions have strict conditions, and tracing them often requires documents and legal advice.
The matrimonial home exception
The family home is treated differently. The deduction for property owned on the date of marriage applies only to property “other than a matrimonial home”, and the definition of matrimonial home in subsection 4(1) includes property that is a matrimonial home at the valuation date.
That means if you owned a home on your wedding day and it is still the family home when you separate, you generally cannot deduct its value as pre-marriage property. Many people are surprised by this rule, because a home brought into the marriage can end up shared in the equalization calculation.
The three equalization deadlines under section 7(3)
Subsection 7(3) of the Family Law Act says an equalization application cannot be brought after the earliest of:
- Two years after the day the marriage is ended by divorce or a judgment of nullity;
- Six years after the day the spouses separate and there is no reasonable prospect that they will resume cohabitation; or
- Six months after the first spouse’s death.
These are separate deadlines. Whichever date comes first is the one that applies.
Why "the earliest of" matters: an example
Imagine a couple separates in 2024 and their divorce is granted in 2025. The two-year deadline after the divorce ends in 2027. The six-year deadline after separation would not end until 2030. Because the law uses the words “the earliest of”, the 2027 deadline applies.
The Court of Appeal for Ontario has confirmed this reading. In Okmyansky v. Okmyansky, 2007 ONCA 427 (at para. 47), the Court described the limit as two years after divorce or six years after separation, “whichever is earlier”. In Mikhail v. Cole, 2017 ONCA 262 (at para. 4), the Court held an equalization claim was barred by comparing the two-year divorce date with the six-year separation date.
The practical lesson: getting divorced can shorten your time to claim equalization. If a divorce is coming, your property claim should be addressed before, or at the same time as, the divorce.
Can a court extend the deadline? Section 2(8)
Yes, but only in limited cases. Subsection 2(8) of the Act allows the court, on motion, to extend a time set by the Act if it is satisfied that:
- there are apparent grounds for relief;
- relief is unavailable because of delay that has been incurred in good faith; and
- no person will suffer substantial prejudice by reason of the delay.
In Hevey v. Hevey, 2021 ONCA 740 (at para. 40), the Court of Appeal said each requirement must be met. The court may look briefly at the merits to see whether there are apparent grounds for the claim. “Good faith” means the person acted honestly and with no ulterior motive. And prejudice must be substantial, not just some prejudice; the length of the delay and whether the other spouse has rearranged their financial affairs are relevant.
In El Feky v. Tohamy, 2010 ONCA 647 (at paras. 39 and 41), the Court granted an extension and noted that the hardship of having to deal with litigation is not, by itself, the kind of substantial prejudice the section has in mind. The Court of Appeal applied the same good-faith standard in Trezzi v. Trezzi, 2019 ONCA 978 (at para. 55).
An extension is never automatic. It requires a motion, evidence, and an explanation of the delay, so it is far better not to miss the deadline in the first place.
Common-law partners are treated differently
The equalization rules in Part I of the Family Law Act apply to married spouses (and, in some cases, to people who entered a void or voidable marriage in good faith). The general definition of “spouse” in subsection 1(1) does not include common-law partners.
Section 29 expands “spouse” to include certain unmarried partners, but only for the support part of the Act. As a result, common-law partners in Ontario do not have a statutory right to equalization, and other legal claims may apply to them instead. See our article on common-law property division in Canada.
Practical steps if you have separated
- Write down your date of separation and keep evidence of it.
- If a divorce has been granted or is about to be, note the date: the two-year clock may already be running.
- Gather documents showing what you and your spouse owned and owed on the date of marriage and on the valuation date.
- Do not assume a separation agreement will be signed in time; consider the deadline while negotiating. See our guide on Ontario separation agreements.
- If you think a deadline may have passed, speak with a lawyer promptly about whether a section 2(8) extension may be available.
When to speak with a family lawyer
Speak with a lawyer as soon as possible after separation, before a divorce is finalized if property issues are not resolved, if your spouse owned a home on the wedding day, or if you are close to any deadline. Our Toronto family law team at Pax Law Professional Corporation can review your dates and options. For information on fees, see how much a divorce lawyer costs in Toronto.
Frequently asked questions
What is the deadline to claim equalization in Ontario?
The earliest of two years after a divorce or nullity judgment, six years after separation with no reasonable prospect of reconciliation, or six months after the first spouse’s death, under subsection 7(3) of the Family Law Act.
Does the two-year divorce deadline apply if six years have not passed since separation?
Yes. The Act uses the earliest date. If two years after the divorce comes first, that deadline applies even though six years have not passed since separation.
When does the six-year period start?
On the day the spouses separate and there is no reasonable prospect that they will resume living together.
What is net family property?
The value of what a spouse owns on the valuation date, minus debts and liabilities, and minus the net value of property, other than a matrimonial home, owned on the date of marriage.
Who receives the equalization payment?
The spouse with the smaller net family property is entitled to one-half the difference between the two net family properties, under subsection 5(1).
Can I deduct the value of a home I owned before marriage?
Generally not, if it is still the matrimonial home on the valuation date. The date-of-marriage deduction excludes a matrimonial home.
Can the court extend the equalization deadline?
Yes, under subsection 2(8), but only if there are apparent grounds for relief, the delay was in good faith, and no one will suffer substantial prejudice because of the delay. All three conditions must be met.
What does good faith mean for an extension?
The Court of Appeal has said it means the person acted honestly and with no ulterior motive.
Is the stress of a late lawsuit substantial prejudice?
Not by itself. In El Feky v. Tohamy, the Court of Appeal said ordinary litigation hardship is not the kind of substantial prejudice section 2(8) is aimed at.
Do common-law partners in Ontario get equalization?
No. The statutory equalization right applies to married spouses. Common-law partners may have other claims, so legal advice is important.
What is the deadline if my spouse dies?
Generally six months after the first spouse’s death, unless an earlier deadline already applies. A surviving spouse also has separate election rules, which should be reviewed with a lawyer quickly.
Does the deadline stop while we negotiate?
Not automatically. Negotiations do not by themselves stop the clock, so speak with a lawyer about protecting your claim while you negotiate.
Book a consultation
If you have separated in Ontario and want to understand your equalization deadline, you can book a confidential consultation with a family lawyer.
- Toronto office (Pax Law Professional Corporation): Book a consultation — 10th Floor, 4711 Yonge Street, Toronto, ON — +1-416-447-4862
- North Vancouver office (Pax Law Corporation): Book a consultation — 215-1433 Lonsdale Avenue, North Vancouver, BC — +1-604-767-9529
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Disclaimer: This article is general information only and is not legal advice. It is based on Ontario’s Family Law Act and Court of Appeal for Ontario decisions as of the date of publication. The law changes, and every case depends on its own facts. Reading this article does not create a lawyer-client relationship. Please speak with a lawyer about your own situation before acting.
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