Separation While Pregnant in Ontario: Support and Parenting Rights

Separating during a pregnancy brings practical and legal questions at the same time. You may be worried about money, housing, what happens at the birth and who will make decisions for the baby.

This article walks through the general Ontario framework for support, property and parenting. Some pregnancy-specific questions, such as parentage in particular circumstances, depend on the facts and are worth raising with a lawyer.

Married or not: which law applies

Divorce Act relocation rules apply to parents who are or were married and who have a Divorce Act order. Ontario's Children's Law Reform Act governs parents who were never married.

For spouses, divorce is granted on the ground of marriage breakdown, usually proven by living separate and apart for at least one year immediately before the divorce is determined. A reconciliation attempt does not necessarily restart the clock: resumed cohabitation totalling not more than 90 days with reconciliation as its primary purpose does not interrupt the separation period.

You do not have to wait for a divorce to deal with support, property and parenting. Many parents settle these in a separation agreement.

Support while pregnant and after the birth

Spousal support is not automatic. You may qualify if you were married, lived together as a couple for at least three years, or had a child together in a relationship of some permanence, and show a need and the other person's ability to pay. For support purposes, the Family Law Act also treats unmarried persons as spouses if they cohabited continuously for at least three years, or are in a relationship of some permanence and are the natural or adoptive parents of a child.

Amount and duration are set by negotiation or by a judge, considering income difference, child care, age and health, and roles in the relationship. How time out of work around the pregnancy and early childcare fits in depends on your situation, so it is worth confirming with a lawyer. In making a spousal support order, a court shall not take into consideration any misconduct of a spouse in relation to the marriage.

Child support is separate. Parents must support an unmarried minor child to the extent they are capable, and factors include current and future means, capacity to contribute, age and health, and accustomed standard of living. How support is handled before a baby is born is not something a general article can answer, so ask a lawyer about your timing.

Parenting decisions and the child's best interests

For parents who were never married, parenting applications are decided on the child's best interests, and the court considers all the child's needs and circumstances. Married parents proceeding under the Divorce Act also have the best-interests factors in section 16.

Where a baby has not yet been born, agreements about parenting time or decision-making are usually easier to put in place after birth, when the child's needs are clearer. Ask a lawyer how to protect your position in the meantime, including questions about parentage.

Moving is also a common issue with a young child. For parents with parenting time or decision-making responsibility under the Divorce Act, a relocation requires notice at least 60 days before the expected move. The notice must state the expected move date, the new address and contact information, and a proposal for how parenting time could continue. Never-married parents should confirm what the Children's Law Reform Act requires, since it is the law that governs them.

Property, the home and pensions

If you were married, the spouse with the lesser net family property is entitled to one-half the difference between the two net family properties. Unmarried partners are not spouses for equalization, and common-law couples are not legally required to split property acquired while living together.

Both spouses have an equal right to possession of a matrimonial home. Workplace pensions count as property in equalization, while Canada Pension Plan credits are dealt with separately.

Deadlines apply: to go to court over an equalization amount you have six years from separation or two years from the divorce being final, whichever comes first.

What to do next

You do not need a lawyer to make a separation agreement, but legal advice before signing is recommended. Each party should understand the terms, give complete and honest financial information, and not be under pressure. If support is included in an agreement and you want the Family Responsibility Office to enforce it, file the agreement with the court (Form 26B) and register it with the office.

• Write down the date you separated, since it matters for property and divorce timing.
• Gather income, benefit and expense records for both of you.
• Note whether you were married, and how long you lived together.
• Keep a record of medical, housing and baby-related costs.
• Avoid signing anything under pressure.
• Ask a lawyer about parentage and support timing for your situation.
• Diarize the property deadline if you were married.

Frequently asked questions