Do I Need a Separation Agreement in Ontario to Separate?

Many people searching for "legal separation in Ontario" expect a form to file or a certificate to apply for. They want to know whether they are officially separated yet, or whether something has to happen at a courthouse first.

The short answer is that being separated is mostly a matter of fact, not paperwork. A separation agreement is a useful tool, but it is a choice. This article explains what the law looks at, what an agreement can do, and when it makes sense to get one.

Is there a form to become legally separated?

What matters in the law is whether you and your spouse are living separate and apart. For a divorce, the one-year ground is proven by the spouses having lived separate and apart for at least one year immediately before the divorce is determined.

Spouses are treated as living separate and apart for any period they lived apart and either of them intended it to be a separation. How this applies to your situation depends on the facts, so it is worth confirming with a lawyer.

If you tried to reconcile, the one-year period is not necessarily restarted. A separation is not interrupted by resumed cohabitation totalling not more than 90 days, as long as reconciliation was its primary purpose.

What a separation agreement does

A separation agreement is a written contract between you and your partner that records how you will deal with the practical results of the breakup. Ontario.ca says marriage contracts, cohabitation agreements and separation agreements can deal with property division. Spousal support amount and duration can also be set by negotiation in a separation agreement, or decided by a judge if you cannot agree.

Parents must support an unmarried minor child, or a child in full-time education, to the extent they are capable. An agreement is a common place to record how that will be handled, along with the other arrangements for your children.

Married or common-law: why it matters

What you are dealing with depends on your relationship. The property equalization rules apply to spouses who are married to each other, and unmarried (common-law) partners are not "spouses" for that purpose. Common-law couples are not legally required to split property acquired while living together, and they may choose a cohabitation agreement or separation agreement instead.

For support, the definition is wider. Unmarried people can count as spouses if they cohabited continuously for at least three years, or are in a relationship of some permanence and are the natural or adoptive parents of a child. Spousal support is not automatic, though, and you generally need to show a need and the other person's ability to pay, or have an agreement that provides for support.

Because the rules differ, a common-law couple may have more reason to put terms in writing, since the default equalization regime does not apply to them.

Why the date of separation still matters

Even without filing anything, your separation date has consequences. For married spouses, net family property is measured as of the valuation date, which is first of all the date the spouses separate with no reasonable prospect of resuming cohabitation. If the spouse with the lesser net family property is entitled to an equalization payment, it is one-half of the difference between the two net family properties.

Time limits matter too. An equalization application must be brought by the earliest of two years after a divorce, six years after separation, or six months after the first spouse's death. Ontario.ca summarizes it as six years from separation or two years from the divorce being final, whichever comes first.

Other deadlines can apply too. For example, separated common-law partners generally must apply to split Canada Pension Plan credits within four years after they began living apart, unless both agree in writing to a later application. Because it can be hard to prove a separation date later, it helps to write down when you separated and keep records.

Signing and enforcing an agreement

You do not need a lawyer to make a separation agreement, but legal advice before signing is recommended. Each party should understand the terms, give complete and honest financial information, and not be under pressure.

Both partners must sign in front of a witness, and the witness must also sign.

If the agreement includes support, there is an extra step if you want government enforcement. To have the Family Responsibility Office enforce the support terms, you file the agreement with the court (Form 26B) and register it with FRO. Court-made support orders are filed with FRO automatically. Only the courts can change an order, and FRO cannot change its terms.

What to do next

You do not need to rush to a courthouse just to be separated, but a little preparation now can prevent disputes later. Consider these steps.

• Write down the date you and your partner began living separate and apart, and whether either of you intended it to be permanent.
• Gather financial records: bank and credit card statements, mortgage or lease documents, pension statements and recent tax returns.
• List what each of you owned and owed, including debts, as best you can for the separation date.
• Decide whether you and your partner can talk through property, support and children, or whether you need help from a lawyer or mediator.
• Get legal advice before you sign anything, and make sure both signatures and a witness signature are in place.
• If support is included, ask how to file the agreement so it can be enforced through FRO.
• Note any time limits that may apply to you and confirm them with a lawyer.

Frequently asked questions