Separation After a Short Marriage in Ontario: What Can I Claim?

If your marriage ended after a year or two, you may wonder whether the usual rules about dividing property and paying support really apply to you. It can feel as if a short marriage should mean a clean break, with each person leaving with what they brought in.

The answer is more nuanced. A short marriage does not switch off Ontario's family property rules, but it often changes the numbers a great deal. This article explains how equalization, support and pension credits work in general, and where you should confirm details with a lawyer.

Does a short marriage still count for property?

For married spouses, Ontario's Family Law Act provides that when spouses separate with no reasonable prospect of resuming cohabitation, the spouse whose net family property is lower is entitled to one-half of the difference between the two net family properties. That is the equalization payment.

Net family property is the value of all property a spouse owns on the valuation date, except excluded property, less debts and liabilities, and less the net value of property owned on the date of marriage. The valuation date is generally the date you separate with no reasonable prospect of resuming cohabitation.

In a short marriage, that last deduction does a lot of work. If most of what you own was yours before the wedding, it is subtracted, and what is left to compare may be small. Property owned before the marriage is usually shared only for any increase in its value.

What is shared and what stays yours

• Debts such as credit cards, car loans and mortgages are subtracted when each spouse's share is calculated.
• Workplace pensions count as property in the calculation.
• Gifts or inheritances from a third person received after the date of marriage, other than a matrimonial home, can be excluded, as can certain insurance proceeds, personal injury damages and property a domestic contract says is excluded.
• The full value of the family home is shared even if it was owned before the marriage, gifted or inherited, unless the spouses agree otherwise.
• Whoever claims a deduction or an exclusion has the onus of proving it.

A court can divide property unequally only where an equal split would be unconscionable, which Ontario.ca describes as extremely unfair to one spouse. How that applies to you depends on your situation, so it is worth confirming with a lawyer.

Spousal support after a short relationship

Spousal support is not automatic. You may qualify if you were married, lived together as a couple for at least three years, or had a child together in a relationship of some permanence, and you must show need and the other spouse's ability to pay, unless an agreement provides for support.

Amount and duration are set by negotiation or by a judge, who looks at income differences, child care, age and health, and the roles each person played in the relationship. The Spousal Support Advisory Guidelines are only guidelines. Fault is not part of the picture: a court making a spousal support order shall not consider misconduct in relation to the marriage.

Child support is separate. Parents must support an unmarried minor child to the extent they are capable, and the court looks at current and future means, age, health and the accustomed standard of living.

If you were not married

If you were not married, other legal routes may exist for property claims, but how they work and their deadlines depend on your facts, so get advice early.

CPP credits and next steps

Canada Pension Plan credits earned during the time you lived together can be split. For separated spouses, the tests include having lived together at least 12 consecutive months and apart at least 12 consecutive months. Only credits from the cohabitation period are divided, and the split is permanent. CPP credits are handled this way instead of through equalization.

• Write down your date of marriage and your date of separation.
• List what each of you owned on the wedding day and what each owns now, with debts.
• Keep records of any gift or inheritance and where the money went.
• Gather pay stubs, tax returns, pension statements and the lease or mortgage documents.
• Know that a separation agreement needs both signatures in front of a witness who also signs.
• If you are considering a separation agreement, get legal advice before signing it; Ontario.ca recommends this.

Equalization claims have deadlines, so do not wait too long to get advice.

Frequently asked questions