How Separation Works in Ontario: First Steps to Take

When a relationship ends, the hardest part is often not knowing what happens next or what to do first. Many people worry that one wrong move, such as moving out or signing something, will cost them later.

This article explains how separation generally works in Ontario and sets out the first steps in a sensible order. Your situation may differ depending on whether you are married or common-law, so use this as a map and confirm the details with a lawyer.

What separation means in law

For married spouses, the date you separate with no reasonable prospect of living together again is the first of the dates that can set the valuation date for dividing family property. Property you owned at separation is valued as of the day you separated.

When property is equalized, the spouse whose net family property is smaller is generally entitled to one-half of the difference between the two. A court may award more or less than half if equalizing would be unconscionable, and one factor it considers is a spouse's intentional or reckless depletion of their net family property. Debts on the valuation date, such as credit cards, car loans and the remaining mortgage, reduce a spouse's net family property.

Divorce has its own test. Breakdown of a marriage is generally established if you have lived separate and apart for at least one year before the court decides the divorce. Only one spouse needs to intend to live separate and apart. Breakdown can also be established without the one-year separation if the respondent spouse committed adultery, or treated the other spouse with physical or mental cruelty that makes continued cohabitation intolerable.

If you are not married, different rules apply. Common-law couples are not legally required to split property acquired while living together, and items generally belong to whoever bought them, although a partner who contributed to the other's property may need to go to court to recover that contribution. For support claims, though, two unmarried people who cohabited continuously for at least three years, or who are in a relationship of some permanence and are parents of a child, can count as spouses.

Your first steps, in order

• Make sure you and your children are safe. If you are in danger, call 911 or local police immediately.
• Write down the date you believe you separated and who said what about it. Dates are explained further in our separation-date article.
• Gather financial records: bank, credit card, loan, mortgage, pension and tax documents. A separation agreement can be set aside if a party failed to disclose significant assets or debts.
• If you are married, do not sell or mortgage the matrimonial home on your own. A spouse cannot do this unless the other spouse joins in or consents, the other spouse has released their rights by separation agreement, a court order authorizes it, or another property is validly designated and registered as the matrimonial home. If you are not married, how this applies to your home depends on your situation, so it is worth confirming with a lawyer.
• Keep the children's routines steady and avoid arguments in front of them.
• Get information and, if you can, legal advice before signing anything.

The home

A matrimonial home is every property in which a spouse has an interest and that is, or was at the time of separation, ordinarily occupied by the spouses as their family residence. Both spouses have an equal right to possession of it, whoever holds title. Without a court order, a non-owning married spouse cannot be put out simply because the other spouse owns it.

A court can order that one spouse have exclusive possession for a period it sets, whoever owns the home. It considers things such as the best interests of the children, both spouses' finances, whether other suitable and affordable housing is available, and any violence.

These matrimonial home rules apply to married spouses. Unmarried partners are told to contact a lawyer about their rights and options regarding the home. Where only one spouse has an interest in the matrimonial home, the other spouse's right of possession is personal as against the owning spouse and ends when they stop being spouses, unless a separation agreement or court order provides otherwise.

Children and money

Parents are equally entitled to decision-making responsibility for their child. If parents live apart and the child lives with one parent with the other's consent, implied consent or acquiescence, the other parent's decision-making right is suspended until an agreement or order says otherwise, but parenting time is not suspended. Moving out and leaving day-to-day care with the other parent can become part of the care history a court looks at.

On money, joint credit card holders are equally responsible for the whole balance. An additional cardholder is not responsible for repaying it.

Tax benefits can change too. A marital status change must be reported to the CRA by the end of the month after the month the status changed. For a separation specifically, the CRA says to report it only once you have been separated for more than 90 days because of a breakdown in the relationship, and your separated status is effective from the day you started living apart. Because these timing rules work together, it is worth confirming with the CRA or an accountant exactly when you should report.

Agreement or court: what to do next

Many people settle matters in a separation agreement. It is unenforceable unless it is in writing, signed by the parties and witnessed. If a court case is started, each party must attend a Mandatory Information Program session no later than 45 days after the case is started. You need not attend if you have already attended one, or if both parties agree on everything and are proceeding on consent.

Watch the deadlines. An equalization application cannot be brought after the earliest of two years after divorce, six years after separation, or six months after the first spouse's death. A court may extend a time limit in limited situations, but you should not count on that.

• Visit a Family Law Information Centre for free information and referrals.
• Book a consultation with a family lawyer before agreeing to anything about property, the home or parenting.
• Keep copies of everything you sign or send.

Frequently asked questions