How to Legally Separate in Ontario Without Going to Court

Many couples want to separate without a courtroom fight. In Ontario that is possible: you can separate, settle the issues and put the deal in writing without starting a court case.

This article explains what makes a separation effective, how to reach an agreement, and what a written agreement needs to be reliable. It is general information, and a lawyer can tell you how it applies to your circumstances.

What makes a separation effective

There is no application to file to become separated. Spouses are treated as separated for any period they lived apart and one of them intended to live apart. If you try reconciling, periods of living together totalling no more than 90 days, with reconciliation as the main purpose, do not interrupt the separation.

Separation matters later if you want a divorce. A divorce based on separation requires at least one year separate and apart, and you can apply while still living apart as long as the year is complete before the divorce is granted. If you are thinking about remarrying, how that works depends on your situation, so it is worth confirming with a lawyer. A written note of your separation date is a sensible practical step.

Ways to reach agreement without a judge

Parents can build a plan through negotiation, collaborative family law, mediation or arbitration. Each works differently.

Family Law Information Centres provide free information about mediation and resolving issues without court, though staff do not give legal advice.

What a separation agreement should cover

A separation agreement is a written agreement made when no court case has started. What you include depends on your family, but typical topics line up with the main issues of separation.

• Parenting: where children live, time with each parent and who makes major decisions; informal plans can be hard to enforce.
• Child support: based on the number of children, the payor's province and the payor's annual income. The payor must give proof of income every year.
• Spousal support: depends on factors like income difference, children, ages and health, and the Spousal Support Advisory Guidelines are only guidelines.
• Property: if you are married, property acquired during the marriage must be split equally when the marriage ends, and the family home's full value is shared even if it was inherited or a gift.
• The home: which of you stays, and for how long.

Common-law partners are not legally required to split property acquired while living together, though they may set property rights in a cohabitation agreement. If you are not married, ask a lawyer how your agreement should handle property.

Making the agreement hold up

Form matters. A domestic contract, including a separation agreement, is unenforceable unless made in writing, signed by the parties and witnessed. The Court of Appeal has upheld a signed but unwitnessed separation agreement on its facts, but you should not count on that.

Disclosure matters too. A court may refuse to enforce a separation agreement if a party did not fully disclose financial information. A court may set aside a contract or a provision if a party failed to disclose significant assets or significant debts, if a party did not understand the nature or consequences of the contract, or on other contract-law grounds such as duress. Even then, a breach does not automatically void the contract; the court has discretion and fairness is a consideration.

Ontario says each of you should have your own lawyer look over the agreement before you sign, and that you cannot easily change it later. The Law Society of Ontario says a lawyer giving independent legal advice should give a written certificate, have the client sign a copy, and send the signed copy to the other side's lawyer. For separation agreements, the Family Law Act has no mandatory certificate like the one required for family arbitration agreements.

Filing the agreement and what to do next

You can file a separation agreement with the court so it can be enforced, using Form 26B (Affidavit for Filing Domestic Contract or Paternity Agreement) at the Ontario Court of Justice or the Family Court branch of the Superior Court of Justice, then register it with the Family Responsibility Office. The FRO enforces support, can take money from bank accounts, suspend a driver's licence or start a court case, and enforcement is free for the recipient.

If circumstances change, spousal support terms can be changed by a consent motion to change (Form 15C) where both agree, or Form 15 if one does not.

• Record your separation date and keep it with your documents.
• Collect complete financial records for both of you.
• Decide whether mediation or collaborative law suits you.
• Have each person review the draft with their own lawyer.
• Sign in writing with a witness, then ask about filing with the court.

Frequently asked questions