Toronto Family Law Act Elections Lawyer
Toronto Spousal Election Lawyer
Toronto Rights of Surviving Spouse Lawyer

Family Law Act Elections/ Rights of Surviving Spouse
Rights of Surviving Common Law Spouses

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Within six months after the death of a married spouse, the surviving spouse has a significant decision to make. The surviving spouse must choose whether to receive their entitlement under the deceased spouse’s Will, or if the spouse has not left a will, on intestacy under the Succession Law Reform Act, or to receive an equalization of net family property under the Family Law Act. When a spouse chooses equalization, this is called an election under the Family Law Act.

Under the Family Law Act, any property amassed during the marriage that still exists at separation will be divided equally.  Increases in value of property and assets owned at the date of marriage are also equally shared. This process is called equalization of net family property. The spouse with the higher net family property pays the spouse with the lower net family property half of the difference. This payment is the equalization payment.

When considering a Family Law Act election, a surviving spouse should receive sufficient information on their rights and on each of their options before making a decision. Information gathering about each spouse’s assets, property, and debts is a crucial part of this process and may include appraisals and valuations. This information will help determine which option provides for greater benefit.

Extension of Time for Elections

While sections of the Family Law Act require a surviving spouse to make an election within six months of date of death, courts may extend the election deadline of the surviving spouse under certain circumstances. The court has discretion to extend this deadline if: (a) there are apparent grounds for relief; (b) relief is unavailable because of delay that has been incurred in good faith; and, (c) no person will suffer substantial prejudice by reason of the delay.

A surviving spouse would need to bring a Motion to extend the time for election and this Motion should be brought before the end of the limitation period contained in the Family Law Act.

Rights of Surviving Common Law Spouses

Unlike married spouses, common law spouses do not have the same property rights regarding their spouse’s estate, if their spouse dies without a will. However, surviving common law spouses can seek dependent’s relief from their spouse’s estate. Surviving common law spouses may also pursue relief through the equitable constructive trust doctrine.

Common law spouses do have rights to their spouse’s CPP pension and OAS benefits. After separation, common law spouses may be able to divide the CPP contributions they made during their relationship equally.

Why Gilbertson Davis LLP?

Family Law Act elections are a complex and often contentious area of family law. It is essential to receive experienced and well-informed counsel to assess a surviving spouse’s claim and to determine which course of action is most appropriate and beneficial for the surviving spouse. At Gilbertson Davis LLP clients have access to experienced family law counsel and experienced estates counsel.

Contact us for an initial consultation.

This page contains general legal information only and should not be construed or relied upon as legal advice for your unique situation. If you require legal advice, please request an initial consultation with Gilbertson Davis LLP using the Request Consultation Form on this webpage or by contacting our Intake Coordinator on (416) 979-2020, ext. 223 (both subject to the Terms of Use described on our Contact page).

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