Annulment in Ontario: Property, Support and Children

If your marriage is annulled, you may wonder what happens to the house, the savings, the children and any ongoing support. With divorce, the answers are fairly well known. With annulment, which says the marriage was not valid, the questions are less settled and are easy to get wrong.

This article explains how the main money and children rules work in a divorce setting, then identifies the points where an annulment could change things. Because the effect of annulment on these remedies depends on the facts, treat this as a way to prepare questions for a lawyer.

Annulment versus divorce in one view

A divorce ends a marriage that was valid. A court can grant one when the marriage has broken down, for example after the spouses have lived separate and apart for at least one year. An annulment is about whether the marriage was valid in the first place. Ontario applies English annulment law as it stood on 15 July 1870, so far as it can be applied, and the Civil Marriage Act sets out basics such as free and enlightened consent, a minimum age of 16, and no prior undissolved marriage.

Property: how equalization works in a divorce setting

In Ontario, equalization compares each spouse's net family property at separation with the net family property at the date of marriage. The spouse with the larger net increase pays half the difference to the other. Property owned at separation is valued as of the separation date, and property owned at marriage is valued as of the wedding date.

Several points often matter:

• Retirement savings and tax-free savings accounts (TFSAs) are among the property counted.
• Excluded property includes property other than the family home that was inherited or received as a gift from someone other than your spouse during the marriage, insurance money received because someone died, personal injury money, and property the spouses agree in writing to exclude.
• The family home must be shared at full value even if one spouse owned it before the marriage or received it as a gift or inheritance.
• Debts are subtracted from property values.
• Gifted or inherited money put into a matrimonial home loses its exclusion.

Equalization is described by the Ontario government as part of what happens when a marriage or common law relationship ends. Whether and how it applies to a marriage that a court declares was never valid depends on the facts and is worth confirming with a lawyer.

Spousal and child support

Under the Divorce Act, a court may order child support (s. 15.1(1)) and spousal support (s. 15.2(1)). A spousal support order should recognize economic advantages or disadvantages to the spouses arising from the marriage or its breakdown. In plain terms, the court looks at who gave up income or career opportunities and who gained.

Children are treated differently from spouses. Before granting a divorce, the court must be satisfied that reasonable arrangements have been made for the support of any children of the marriage. How a claim is brought, and under which statute, depends on your circumstances and is worth confirming with a lawyer.

Whether spousal support is available after an annulment is a point that depends on the facts, so avoid assuming either that it is automatic or that it is barred.

Deadlines, pensions and costs to keep in mind

For property claims in the divorce setting, you must go to court within six years from the day you separated or two years from the day your divorce is final, whichever comes first. How this applies after an annulment depends on your situation, so it is worth confirming with a lawyer. If you are considering a property claim, get advice early.

Pensions can be a large part of the value. The government advises asking the pension administrator for the pension's value. Under the Pension Benefits Act, since 2012 the former spouse's equalization share is limited to 50% of the Family Law Value, and the administrator prepares a Statement of Family Law Value. If the member has not retired on the valuation date, the administrator can only pay the spouse a lump sum, which must go to a locked-in account such as a LIRA or LIF. Whether these pension rules reach someone whose marriage was annulled is another point to confirm.

On costs, the successful party in a family case is presumed to get costs, but the court can deprive a successful party of costs if that party behaved unreasonably. Late financial disclosure is an example of conduct that can reduce a costs award.

What to do next

Whether you pursue annulment or divorce, protect your financial position while you get advice.

• List everything each of you owned on the wedding date and on the separation date, with statements that show values.
• Gather income records, tax returns and pension statements, since honest and timely disclosure matters.
• Write down who has cared for the children and how support has been handled so far.
• Note the date you separated and set a reminder for the property deadline.
• Do not move TFSA funds between you and the other person without advice, because a direct transfer on breakdown only qualifies if the spouses are living separate and apart and the transfer is made under a court order or a written separation agreement.
• If an RRSP is involved, ask about the transfer process before moving any money, since the CRA uses form T2220 for RRSP transfers on breakdown.
• Ask a family lawyer to compare annulment and divorce for your situation, including what each means for property, support and children.

Frequently asked questions