An Ontario equalization claim must start by the earliest of three deadlines in the Family Law Act. They are two years after a divorce, six years after separation, or six months after a spouse's death. A court can extend the time only if a strict test is met.
How do the equalization deadlines work in Ontario?
Equalization is a claim, not an automatic right that waits for you. If neither spouse starts a court application, or signs an agreement that settles the issue, before the deadline passes, the right to an equalization payment can be lost. How the payment itself is worked out is explained in our guide to how property is divided in Ontario. For an overview of property claims in general, start with our property division page.
Section 7(3) of the Family Law Act says an application for equalization on separation, divorce or death cannot be brought after the earliest of these dates:
- Two years after the day the marriage ends by divorce or a judgment of nullity (s. 7(3)(a)).
- Six years after the day the spouses separate with no reasonable prospect that they will resume cohabitation (s. 7(3)(b)).
- Six months after the first spouse's death (s. 7(3)(c)).
The key word is "earliest". You do not get to choose the most generous deadline. Work out each date that applies to you, and the first one to arrive is your deadline.
The separation date in the second deadline uses the same test as the valuation date, so a dispute about when you separated is also a dispute about when the clock started. Our page on the valuation date explains that test and the evidence that proves it.
Deadlines at a glance
| Event | Deadline | Where the rule is |
|---|---|---|
| Divorce | 2 years after the marriage is terminated by divorce | Family Law Act, s. 7(3)(a) |
| Annulment | 2 years after the judgment of nullity | s. 7(3)(a) |
| Separation | 6 years after separating with no reasonable prospect of reconciling | s. 7(3)(b) |
| Death of a spouse (claim by the survivor) | 6 months after the death | s. 7(3)(c) |
| Survivor's election between the will and equalization | Filed with the Estate Registrar for Ontario within 6 months after the death | s. 6(10) |
| Missed deadline | Motion to extend, if all three conditions are met | s. 2(8) |
What counts as starting a claim?
Section 7(3) is about when an application is "brought". Under rule 8(1) of the Family Law Rules, a case starts when a person files an application, usually Form 8 for a property claim. A spouse who is responding to a case started by the other can also include a property claim in their answer (r. 10(3)).
A property claim cannot be heard by the Ontario Court of Justice, because the definition of "court" in section 4(1) leaves that court out of Part I. In Toronto, the claim belongs in the Superior Court of Justice; our page on the Superior Court of Justice family court in Toronto explains where and how to file.
Some things that feel like starting a claim do not stop the clock:
- a lawyer's letter demanding equalization;
- exchanging financial statements informally;
- attending mediation or negotiating a settlement;
- starting a divorce-only application that contains no property claim.
Nothing in section 7(3) pauses the time while spouses talk. The safety valve for a missed deadline is the extension power in section 2(8), discussed below. A signed separation agreement that deals with equalization is different: it settles the claim, so the deadline no longer matters for that issue.
Once a claim is filed, the work of proving it begins. A property claim must be filed with a financial statement (Form 13.1) under rule 13(1), and supporting documents follow within 30 days after the statement is due (r. 13(3.3)). Our page on financial disclosure in a property case lists what is needed.
What changes the answer
- A divorce can shorten your time. Many people separate, get a divorce a year or two later, and assume they still have six years from separation. They do not, if two years after the divorce comes first. Note that the Act counts from the day the marriage is terminated by divorce, and under section 12(1) of the Divorce Act a divorce generally takes effect on the 31st day after the judgment. The cautious approach is to count from the judgment date and file well before two years from it.
- A spouse dies. The surviving spouse's claim under section 5(2) has a six-month limit, and the election to take equalization instead of the will or intestacy must be filed within the same period (s. 6(10)). If no election is filed in time, the survivor is deemed to have chosen the will or intestacy, unless a court orders otherwise (s. 6(11)). Our page on what happens to equalization when a spouse dies explains the choice.
- A case started before death. If one spouse started an equalization case and then died, the case can be continued by or against the estate (s. 7(2)(a)).
- An extension under section 2(8). A court may, on motion, extend a time set by the Act if it is satisfied that there are apparent grounds for relief, that relief is unavailable because of delay incurred in good faith, and that no person will suffer substantial prejudice because of the delay. All three conditions must be shown.
- Property distributed from an estate. If the court extends the time for a survivor's claim, property of the deceased spouse distributed before the order, without notice of the application, is left out of the deceased's net family property (s. 6(16)).
- You were never married. Section 7(3) applies to equalization, which is only for married spouses. Common-law partners bring different claims with their own limitation rules; see our page on unjust enrichment claims.
- An existing agreement. If a marriage contract or separation agreement already deals with property, the question may be whether it can be challenged, not whether a claim is on time. Our page on setting aside a domestic contract covers that route.
A worked example
For example, imagine a hypothetical couple, Chris and Dana, who separate on March 1, 2021, with no prospect of reconciling. Chris files a divorce-only application, and the divorce judgment is granted on June 15, 2022. Neither of them has made a property claim. Their possible deadlines are:
- six years after separation: March 1, 2027;
- two years after the divorce: about mid-June to mid-July 2024, depending on whether the count starts at the judgment or when it took effect 31 days later.
The earliest date controls. Counting from the judgment, the cautious deadline for Dana's equalization claim was June 15, 2024. If Dana only learned of the deadline in 2025, the claim is out of time, and the only route is a motion to extend under section 2(8), showing apparent grounds for relief, good-faith delay and no substantial prejudice. If Chris and Dana had never divorced, Dana would have had until March 1, 2027. The divorce shortened the time by more than two and a half years.
Common mistakes with equalization deadlines
- Counting only from separation. The six-year limit is the one people remember, but the two-year limit after divorce often comes first.
- Getting a quick divorce without dealing with property. A divorce-only application is often simpler, but it starts the two-year clock. Settle property first, or include the property claim.
- Treating negotiation as a pause. Letters, meetings and mediation do not stop time running under section 7(3).
- Arguing about the separation date too late. If the date is disputed, the deadline is disputed too. Start the claim based on the earliest date the other spouse could argue for.
- Missing the six-month window after a death. Grief and estate administration take time, but the election and the claim run on a short clock.
- Relying on the extension power. Section 2(8) requires proof of good-faith delay and no substantial prejudice. It is a safety net with gaps, not a plan.
What to do this week
- Write down your separation date and, if you are divorced, the date of the divorce judgment.
- Calculate six years from separation and two years from the divorce judgment, and circle the earlier date.
- If a spouse has died, note the date of death and count six months from it.
- Find any marriage contract or separation agreement, since it may already settle the question.
- Gather your financial records, starting with statements closest to the separation date. Our guide to calculating net family property shows what you will need.
- If the earliest deadline is within the next six months, or has passed, book a free consultation now, so there is time to file or prepare a motion to extend.
Frequently asked questions
Does the limit apply to my spouse as well as me?
Yes. Section 7(3) applies to any application based on section 5(1) or 5(2), whoever brings it. Either spouse can start the claim, and the spouse who expects to receive a payment has the most to lose from delay.
Can we agree to extend the deadline?
The Act does not provide for spouses to extend the deadline between themselves. The extension power in section 2(8) belongs to the court, on motion. Spouses who are still negotiating near the deadline can protect themselves by filing the application and continuing to talk, or by signing a written, signed and witnessed agreement that settles the claim (s. 55(1)).
What happens if I file one day late?
The claim is out of time under section 7(3), and you would need an order under section 2(8) to proceed. The court must be satisfied that there are apparent grounds for relief, that the delay was in good faith, and that no one will suffer substantial prejudice.
Does the deadline stop me from claiming the matrimonial home?
Possession of the home is a separate right under Part II. A spouse with no ownership interest has a right of possession that ends when the two stop being spouses, which happens on divorce, unless a separation agreement or court order provides otherwise (s. 19(2)(b)).
Do the Family Law Rules add any other deadlines?
Yes, once a case is under way. For example, the other spouse has 30 days after being served to serve and file an answer (r. 10(1)), and each party must attend the mandatory information program within 45 days after the case starts (r. 8.1(4)).
Is the deadline different if we separated a long time ago but are still married?
The six-year limit from separation still applies. Staying married does not stop it. Once six years have passed since you separated with no prospect of reconciling, the claim is out of time unless an extension is granted.