I worked 30 years to build my pension and now I’m getting divorced. Do I have to share it with my ex? Ask Gelman

Q I am legally married, and I’m going through a divorce with my wife. We both live and work in North York. We are separated and going to divorce. I don’t want to share my pension with my ex-wife. I’ve been working at my job for 30 years and I don’t think it’s fair that she splits my pension. Do I have to? 
A There is often a misconception as to how property and assets are to be “shared” when a couple ends their marriage. In Ontario, according to the Family Law Act, married couples who separate are required to value all of their assets and debts as of the date of marriage and on the date of separation.
This includes your pension. Specific assets, like your pension, are not “divided” and “split” between the couple (as some incorrectly assume to be the case). Instead, the law is that the assets (net worth) of each spouse are to be valued and then “equalized.” What does this mean exactly?
Well, we figure out the net assets of each party and then we have the party who has a higher value make a payment to the other, so that the parties end up with equal value of net assets.
These assets, can include, any type of asset such as RRSPs, investment properties, cash, gold coins, stocks, TFSA and, of course, a pension. So, a pension that accumulates and grows during the marriage is indeed an asset that is valued and forms part of the your assets that would be subject to “equalization.”
The next question typically asked by our clients is “will I need to break my pension and pay my ex-spouse up to half my pension?” The answer is: it all depends on each spouse’s valuation of their net worth (of all assets and debts) at time of separation. You would not, for instance, have to make any payment whatsoever to your ex-wife, if during the marriage she accumulated other significant assets (such as an RRSP) that as of date of separation is worth the same or more than your pension.
Since the law states that the matrimonial assets are to be “equalized,” the parties will examine all assets that are to be valued pursuant to the Family Law Act of Ontario and, in your case above, if you have a lower overall net worth valuation in comparison to you ex’s net worth valuation of assets there would be no transfer of any funds to the other spouse. 
This is because you don’t owe your wife an equalization payment. It would be your wife that actually makes a payment to you. For example, if you (spouse with the pension) is determined to have an overall valuation at $400,000 (pension included) at date of separation and your wife has overall assets valued at $500,000 this would result in your wife owing you $50,000. 
This payment would result in each of you ending up with $450,000. Your combined net worth valuation was $900,000 and is therefore “equalized” that each of you would end up with $450,000. 
This also means that you would have your pension remain intact as it was already “on paper” factored into the assets and “equalized.”    
The bottom line is that in Ontario a pension is like any other asset, and that pension’s accumulated value during the marriage must be valued and included in that spouse’s net worth at date of separation. 
If your only asset was your pension and you actually owed your wife an equalization payment, you would have to pay out of your pension. 
Lisa Gelman is a family lawyer and founder of Gelman & Associates. Send your divorce, separation, adoption or other family law question to [email protected] and it may be featured in an upcoming article.