Telling Your Spouse You Want to Separate in Ontario: Safe Steps

Deciding to separate is hard enough. Deciding how and when to tell your spouse can feel even harder, especially if you are not sure how they will react. A little preparation before the conversation usually makes the days afterward calmer and safer for you and for any children.

This article walks through timing, documents, housing and safety. It explains how things generally work in Ontario. Your situation may differ, so it is worth getting legal advice before you act on anything that affects your home, your children or your money.

Separating is not the same as divorcing

You do not have to apply for a divorce after you separate. Ontario's Family Law Act and Children's Law Reform Act deal with support and parenting for married couples who separate without divorcing, and for unmarried couples.

If you do want a divorce later, the only ground under the Divorce Act is that the marriage has broken down. One way to show that is by living separate and apart for at least one year before the divorce is decided, and by being apart when the proceeding started. You do not have to wait a year before applying, as long as you are living apart when you apply, but the year must pass before the divorce is granted.

Trying to reconcile does not necessarily restart the clock. Living together again does not interrupt the one-year separation if it lasted no more than 90 days in total and its main purpose was reconciliation.

Think about timing and your separation date

For married spouses, the separation date is the day property is valued for equalization. Each spouse works out their net family property as of that date, and the spouse with the larger figure pays half the difference. A court claim for an equalization payment must be started within six years after the day of separation, or two years after the divorce becomes final, whichever comes first. Whether any exception applies to your deadline depends on your situation, so it is worth confirming with a lawyer.

That makes it worth noting the date you consider the relationship ended, and writing it down. Your spouse may see the date differently, which is one reason to get advice early.

Practical timing questions are usually personal: whether the children are in the middle of exams, whether a lease or mortgage renewal is coming up, or whether you have somewhere safe to stay. Choose a time when you can speak calmly and leave if you need to.

Gather your documents and financial information

Before the conversation, collect copies of the paperwork that shows what you own and owe. Keep them somewhere your spouse cannot easily reach, such as with a trusted person.

• Recent bank, credit card, loan and mortgage statements
• Income tax returns and notices of assessment for recent years
• Pay stubs or business financial statements
• Property records and vehicle ownership documents
• Pension statements, and the plan administrator's contact details, because the administrator is who you ask for a pension's value for family law purposes
• RRSP statements, since a tax-free direct transfer between spouses is allowed if you are living separate and apart at the time and it is made under a court order or a written separation agreement to settle rights arising from the breakdown
• Marriage contract or cohabitation agreement, if you have one
• Passports, health cards and children's documents

Some property is usually left out of equalization, such as most gifts and inheritances (other than the family home) and compensation for personal injury. Note what you believe is excluded, and what you owned on the date of marriage.

Housing, children and safety

Be careful about moving out or changing the locks before you understand your rights. If you are married, the full value of the family home is shared even if you owned it before the marriage or received it as a gift or inheritance. A married person can also ask a court for exclusive possession of the family home, even if it is in the other spouse's name.

Telling children needs its own plan. Children are not expected to choose between their parents, should not be included in discussions about money, and should be told the separation does not mean anything is wrong with them. If you later apply for a divorce, the Divorce Act requires the parties, as far as they are able, to protect children from conflict arising from that proceeding.

If you are afraid of how your spouse will react, do not have the conversation alone at home. If you are in danger, call 911 or the local police, make a safety plan, and if you have children, try to take them with you when you leave.

Two cautions about evidence. Getting into an ex's email or social media accounts can be an offence under the Criminal Code. Recording a conversation you are part of is generally within an exception, because a person with the consent of the sender or intended recipient does not commit the interception offence. Secretly recording others, or reading their private accounts, is a different matter.

What to do next

Once the conversation has happened, aim to put agreed terms in writing. A written agreement on child support, parenting arrangements or spousal support must be signed by both parents or caregivers in front of a witness, and a lawyer or mediator can help prepare it. If support terms need to be enforced by the Family Responsibility Office, the domestic contract must be filed with the court and then registered with that office.

• Write down your separation date and what led to it
• Book legal advice before you move out, sell anything or sign anything
• Open your own bank account and update your passwords on devices you own
• Plan where you and the children will stay for the first few weeks
• Keep the children out of discussions about money

Frequently asked questions