Separation Agreement While Living Together in Ontario

Many couples cannot afford to move out right away. You may have ended the relationship but still share a home, and you may be asking whether you can sign an agreement now and what that does to your separation date.

This article explains what the Ontario rules say, what an agreement needs to be valid, and how to protect yourself while you sort out living arrangements.

What the law says about timing

Family Law Act section 54 lets two people who lived together and are now living separate and apart make an agreement setting out their rights and obligations. It applies to married and unmarried couples alike. Separation itself needs no court order.

The Superior Court of Justice guide says Family Law Act sections 54 to 56 set out the basic requirements for a court to recognize and enforce a separation agreement.

Whether spouses who share a home count as living separate and apart depends on the facts of your situation, and the answer can matter for the agreement and for a later divorce. A lawyer can confirm how your circumstances are likely to be treated.

Why your separation date matters

For a divorce, marriage breakdown is established if the spouses have lived separate and apart for at least one year. Resuming cohabitation for no more than 90 days in total, with reconciliation as the primary purpose, does not interrupt that period.

The date also affects other rights. Equalization of net family property uses the separation date to value property, and the time limit is six years from separation or two years from the day a divorce is final, whichever comes first. The court keeps a residual discretion under Family Law Act section 2(8) to extend time limits under the Act, but whether that could help you depends on the facts, so confirm your deadline with a lawyer. Common-law partners generally must apply for a Canada Pension Plan credit split within 48 months of starting to live apart.

Because of this, it is sensible to write down when and why the relationship ended and to state the date in the agreement.

What makes an agreement valid and hard to challenge

• It must be in writing, signed by the parties and witnessed. A template that is not properly signed and witnessed cannot be enforced.
• Each person should understand the terms and not be pressured to sign. If that is missing, the agreement can be challenged in court.
• You do not need a lawyer, but legal advice before signing is a good idea because it can be difficult to get a court to set an agreement aside.
• A court may set an agreement aside if a party failed to disclose significant assets or debts, did not understand the nature or consequences of the contract, or on other grounds under the law of contract. Even then, the court decides whether it is appropriate to set the agreement aside, and fairness is a relevant consideration.

Living in the same home can make pressure and misunderstandings more likely, so give each other time to read, ask questions and get advice.

Ontario guidance says each spouse should have their own lawyer review the agreement before signing, and that it cannot easily be changed later. If circumstances change, support terms can be changed by an updated agreement or by a court order, and any amending agreement must also be in writing, signed and witnessed.

What the agreement can cover

A common-law partner who contributed to property the other owns may have a right to part of it, and the separation agreement is where these claims are settled. Your will matters too. Gifts to a separated spouse in a will are treated as if that spouse had predeceased the testator only if the spouses were living separate and apart because of the breakdown of their marriage at the time of death and either had lived apart for the three years immediately before death or have a valid separation agreement, court order or family arbitration award settling their rights. For the three-year route, the spouses must have begun living separate and apart on or after the date the 2021 amendments came into force, so how this applies to you is worth confirming with a lawyer.

Some terms get extra scrutiny. A court may disregard a child support provision that is unreasonable having regard to the child support guidelines. A court may also set aside a support provision or a waiver of the right to support where, for example, it results in unconscionable circumstances.

What to do next

• Record the date and circumstances of separation.
• Gather income, asset and debt information so both of you can disclose fully.
• Consider each getting your own lawyer. Ontario guidance recommends this for separating spouses.
• Do not rely on an unwitnessed template.
• Ask a lawyer how your shared-home situation affects your separation date.

If talking directly is hard at home, family mediation may help. A neutral mediator helps you negotiate your own agreement but does not make decisions, take sides or give legal advice, and each party should get advice from a different lawyer before signing.

Frequently asked questions