Does a Separation Agreement Make Us Legally Separated in Ontario?

Couples often ask whether signing a separation agreement is what makes them legally separated. The short answer is that the agreement records your arrangements, but it is not the thing that starts or ends your separation, and it is not a divorce.

What tends to matter more is the date you separated. That date can feed into support calculations, property and deadlines. This article explains how separation is described in Ontario law and why the date is worth pinning down.

What separation means in law

Separation is mainly about how you live, not about a document. For divorce purposes, spouses are deemed to live separate and apart for any period when they lived apart and at least one of them intended to live separately. So the intention of even one spouse is part of the picture.

A separation agreement is a contract between spouses and is one of five kinds of domestic contract. It is not a divorce and is not a step the Divorce Act requires. In other words, you can be separated without an agreement, and signing an agreement does not end a marriage.

Separation, separation agreement and divorce compared

For a divorce, breakdown is generally established by living separate and apart for at least one year before the divorce is determined, with the spouses still separated when the proceeding began.

Trying again and living under one roof

If you try to reconcile, the one-year period is not interrupted by resumed cohabitation of up to 90 days that was aimed mainly at reconciliation. Longer periods of living together again may raise different questions.

Many couples cannot afford to move out right away. Whether spouses who share a home can be treated as living separate and apart depends on the facts, and for divorce purposes the Divorce Act looks at whether at least one of you intends to live separately. Because this turns on your circumstances, a lawyer can confirm how it applies to you.

Why your date of separation matters

The separation date is not just a formality. It can affect several things:

• Property: equalization starts from the total property you each own at separation, less debts and excluded property.
• Deadlines: to go to court over an equalization payment, the deadline is six years from separation or two years from the final divorce, whichever comes first.
• Spousal support: relationship length runs from the start of cohabitation to the date of separation.
• Support duration: the Spousal Support Advisory Guidelines use years of relationship plus the recipient's age at separation in the rule of 65.

The Spousal Support Advisory Guidelines are often used in Ontario but are only guidelines. Because so much can turn on the date, it helps to agree on it in writing with your spouse, and to have the agreement state it.

Married and common-law couples

The Divorce Act applies to married spouses. Spousal support may be available to a spouse who was married, who lived with the other as a couple for at least three years, or who had a relationship of some permanence and a child together.

Property is treated differently. Married spouses must generally split property acquired during the marriage equally when it ends. Common-law couples are not legally required to split property acquired during the relationship, and each generally keeps what they bought. A cohabitation or separation agreement can set out property rights.

What to do next

• Decide on and write down your date of separation, and keep any emails or messages that confirm it.
• Note any attempts to reconcile, including dates, since up to 90 days aimed at reconciliation does not interrupt the one-year period.
• Check which deadlines run from your separation date, such as the equalization deadline for married spouses.
• If you sign an agreement, have it state the separation date and have each spouse get their own lawyer to review it.
• Speak with a lawyer if you live under one roof or your situation is unclear.

Frequently asked questions