Separation

What does it mean to be separated?

Whether you are married or common-law, separation is when you and your ex decide to live apart.

You do not need to go through a formal process to legally separate in Ontario or sign a document.

Being separated doesn’t mean your marriage has ended if you are married. Only a court can officially end your marriage through divorce process.

What does “separate and apart” mean?

you are living in your own place or
you are living in same place but have separate rooms, meals, and finances

In other words, you must live in a way that it is clear that you are no longer together. One person may move out but this is not required. It may be easier to share parenting responsibilities living together or too expensive to move out on your own until the court proceeding is done.

What are some of the risks of moving out?

A lawyer might not recommend moving out before the issues surrounding the separation have been resolved. The party that moves gives up the status quo. This may make it more difficult to make parenting claims or a claim for exclusive possession of the matrimonial house.

What happens if my partner does not want to separate?

Only 1 person needs to want to separate. It does not matter if the other person does not agree.

What is the day called when you separate?

The date is called the date of separation (DOS). Sometimes, spouses argue over the DOS and it is necessary for a judge to rule on the date.

Why is this date so important for married couples?

Married couples cannot be divorced until they have been separated for 1 year. Also, DOS is used to value assets and debts.

What is in the Divorce Act to encourage reconciliation if possible?

The Divorce Act encourages reconciliation by allowing parties to resume cohabitation for up to 90 days without interrupting the one-year separation period.

Is it necessary to have a separation agreement?

No, you are not obligated to make a separation agreement. People who separate can make an agreement to set out what their rights and responsibilities are after separating.

It’s important that:

both parties understand the agreement
the separation agreement is fair
both parties share complete and accurate financial information when they make a separation agreement

What does a separation agreement deal with?

A separation agreement can deal with children, property, or support.

How do you make the separation legally binding?

Create separation agreement that covers all the important issues
Make sure financial disclosure is complete and accurate
Get independent legal advice (ILA) from a lawyer
Sign agreement in front of a witness who will sign as well

How do you enforce the support part of your separation agreement?

Complete Form 26B: Affidavit for Filing Domestic Contract or Paternity Agreement and file it with the court. Note that you are only enforcing the support portion of the agreement.

What happens if your ex-spouse does not want to prepare a separation agreement?

In cases where you and your ex-spouse cannot agree on certain issues, you may need to seek court orders to resolve disputes regarding child custody, support, or property division. In particular, it is important to obtain a temporary parenting order right away if you cannot agree on its terms.