Separated but Still Living Under One Roof With Kids in Ontario

Many separated parents cannot afford two homes, or are waiting for a lease, a sale or the end of a school year. Living under one roof after the relationship ends is common, but it raises hard questions about who does what with the children and what it means for your legal position.

This article explains in general terms how separation under one roof works in Ontario and how to set up parenting arrangements while you share a home. It is not advice on your case. If there is any family violence, read the safety section first.

Can you be separated in the same home?

Yes. Under the Divorce Act, spouses are treated as separated if they have lived apart, and Ontario says living separate and apart can happen under one roof, for example with separate bedrooms and separate areas, along with an intention to live separately. Divorce requires at least one year of separation immediately before the divorce is decided.

Which law applies depends on your situation. If no divorce proceeding has started, the Children's Law Reform Act applies and you would need a parenting order under that Act. Whether other issues, such as who may remain in the home, are affected by sharing it is a question for a lawyer.

• Sleeping in separate rooms
• An intention to live separately
• Writing down the date you consider yourselves separated

Setting parenting arrangements while sharing a home

Parenting time and decision-making are separate ideas. Decision-making covers significant decisions such as health, education and religion, and can be sole or joint, while parenting time includes time the child is at school or elsewhere. Joint decision-making needs parents who can cooperate and communicate.

When you live together, it is hard to say whose parenting time it is. A written routine can help: who handles mornings, bedtime, school pickups, activities and appointments. A parent with parenting time has exclusive authority for day-to-day decisions during that time, unless the court orders otherwise. Setting out the schedule on paper reduces arguments about who is in charge at any moment.

Parents have the right to parenting time unless a court decides otherwise. For married spouses under the Divorce Act, courts also give effect to the principle that a child should have as much time with each spouse as is consistent with the child's best interests.

Informal, agreement or order: how strong is each?

If you agree on a parenting plan and it becomes part of a court order under the Divorce Act, the court must include it unless it is not in the child's best interests, in which case the court may modify it. Enforcing your rights is harder without a written arrangement. Because you share a home, a fully de facto arrangement may not fit, since the child is not living with only one of you.

Protecting your position and your children

Sharing a home does not stop you from asking a court for a parenting order. For married spouses under the Divorce Act, a court can make parenting orders, including interim orders, that set schedules, conditions and supervision. Practical steps still matter.

• Keep a simple calendar of who does what for the children
• Keep communication about the children brief, civil and in writing where possible
• Avoid arguments in front of the children
• Where it is safe, talk with the other parent before big decisions about the children, and ask a lawyer how this applies to your situation
• Keep records of school, medical and activity information
• Get legal advice before signing anything

Under the Divorce Act, a person with parenting time or decision-making responsibility can ask others holding information, such as health and education providers, for information about the child's well-being, unless the court orders otherwise. How this applies if you were never married depends on your situation, so it is worth confirming with a lawyer.

If it is not safe at home

Staying together for money reasons should never mean staying unsafe. Family violence includes physical, sexual, psychological and financial abuse and harassment, and conduct that causes someone to fear for their safety, whether or not it is a crime. If you leave an abusive situation you can still apply for parenting of your children, and if the children might be in danger you can contact police to take you to a shelter or safe place.

Justice Canada notes that separation can be a particularly dangerous time and recommends a safety plan for you and your children where there is family violence. A motion can be brought without notice in limited situations, including where there is immediate danger that a child will be removed from Ontario or to someone's health or safety and delay would probably have serious consequences. After a without-notice order, you usually must return to court within 14 days so the other party can respond.

What to do next

Decide what you can realistically agree on, put it in writing, and get legal advice about turning it into a separation agreement or a consent order. If you cannot agree, a parenting order is the next step. If safety is a concern, make a safety plan first.

• Write down the date and the facts of your separation
• Draft a simple routine for the children and share it
• Gather financial and parenting records
• Ask a lawyer about a separation agreement or a parenting order
• If there is danger, call police or a shelter and make a safety plan

Frequently asked questions