Separation Agreement While Living Under the Same Roof in Ontario

Many couples cannot afford two homes, or want to stay near the children, so they keep living in the same house after the relationship ends. If that is you, you may wonder whether you are legally separated and whether you can sign an agreement now.

The short answer is that it depends on the facts, and a lawyer can confirm how the rules apply to your household. This article explains what the law says about separation, why the date matters, and how to record your arrangements in writing.

What separation means in Ontario

Separation is when a couple decides to live apart because the relationship has broken down. It needs no court order, and it applies to married and common-law couples. Divorce is different: a court officially ends a marriage, and only married couples can divorce.

A separation agreement is made under section 54 of the Family Law Act by two people who lived together and are now living separate and apart. It applies to married and unmarried couples alike. Whether spouses sharing one home meet that wording is a question that turns on the facts, so it is worth getting advice rather than assuming.

Why the separation date matters

The date you separate can affect several things. For divorce, marriage breakdown is established if the spouses have lived separate and apart for at least one year. Spouses are deemed to have lived separate and apart for any period in which they lived apart and either of them intended to do so.

For married spouses, property is valued on the separation date when calculating equalization. The time limit for an equalization claim also runs from the day of separation, with a six-year limit or two years from the day the divorce is final, whichever comes first.

If you try to reconcile, the one-year period is not interrupted by resuming cohabitation for a period, or periods totalling, not more than 90 days with reconciliation as its primary purpose.

• The one-year period for divorce
• The valuation date for property
• The deadline for an equalization claim
• Eligibility rules for some benefits, such as CPP credit splitting

Putting it in writing while you share a home

A written agreement helps because it shows what you decided and when. To be enforceable, a domestic contract must be in writing, signed by the parties and witnessed. Ontario guidance says you do not need a lawyer to make a separation agreement, but legal advice before signing is a good idea because it can be difficult to get a court to set an agreement aside.

If you are still under one roof, consider recording matters such as the date each of you considers the relationship to have ended, who pays which household costs, and how you will handle the children day to day. Parenting arrangements can be set out in a parenting plan, covering each parent's time and who makes major decisions. An informal arrangement can be difficult to enforce, while you can ask the court to enforce parenting arrangements made in a separation agreement.

Keep in mind that a court looking at children's issues is not bound by what you wrote. Under the Divorce Act, the court considers only the best interests of the child in parenting matters.

Support and money while sharing a home

Child support is based on the table amount for the number of children and the payor's income, plus any special or extraordinary expenses. Shared household costs can blur this, so write down clearly what each person pays and what is meant to be support.

Spousal support is not automatic. A person may be entitled if they were married, lived together as a couple for at least three years, or were in a relationship of some permanence and had a child together. Support terms can later be changed by an updated agreement or by a court order if circumstances change, and any amending agreement must also be in writing, signed and witnessed.

Both sides should share full financial information. Financial disclosure means giving the other party information and documents about income, expenses, assets and debts. A failure to disclose significant assets or debts is one ground on which a court may set a domestic contract aside.

What to do next

Staying in one home can be workable, but unclear arrangements often cause disputes later. Mediation can help: a neutral mediator helps the parties negotiate their own agreement, and each party should get advice from a different lawyer before signing.

• Write down the date and circumstances you consider the separation to have begun
• Keep records of any attempt at reconciliation and how long it lasted
• List household costs, assets and debts, and exchange the information
• Decide how parenting will work in the home and put it in a parenting plan
• Have your own lawyer review the draft before you sign
• Sign in front of a witness

Frequently asked questions