How do I legally separate from my partner in Ontario?

Whether you are married or in a common-law relationship, only one person is required to want to end a relationship to legally separate. You can be legally separated indefinitely and still be married to a spouse. Unlike divorce, a legal separation physically ends the relationship but it does not end the marriage.

To initiate a legal separation you must demonstrate that you want to end the relationship with actions. This includes either:

  1. moving out and living apart in separate homes
  2. living under the same roof but in separate rooms or areas of the home

You can be considered legally separated as soon as you take actions to end the relationship. However, if you want to file for divorce or if you are looking to divide property, Ontario’s courts will want to see that you have been separated for at least one year.

The courts will also look for evidence to confirm that you are legally separated and living apart. To confirm, they will check to see that you are not:

  • sharing a bedroom
  • preparing or eating meals together
  • attending social events as a couple
  • sharing chores and activities 

Separation Agreement

You should have an agreement with your partner on your rights and responsibilities after you separate, especially if there are children involved. If you think you can separate amicably from your partner, this can be done verbally, but any agreements made verbally are not legally binding. Otherwise, you can draft up a separation agreement, which is a legally binding document that sets out the terms of the separation.

Separation agreements define things like:

  • the division of assets and properties 
  • financial support responsibilities (spousal, child support)
  • shared and individual responsibilities for parenting, child custody and access

You and your partner can draft your separation agreement but have a lawyer review it before you sign anything. Having a lawyer review the agreement will make it legally binding. Ask a lawyer if they offer unbundled services to pay only for the revision. 

Domestic Abuse

A separation agreement may not be the best thing to do in the event of domestic abuse. It’s best to contact a family law professional who can give you more information about this. You may also need to get a court order instead so that you don’t have to deal with your partner directly. The court will order them to do what the court order says.

Consider contacting a family law professional instead if:

  • you're afraid of your partner because you have a history of abuse with them
  • there are serious mental health or drug abuse issues
  • you can't talk to your partner 
  • you can't collaborate with your partner

Dividing Property

Property acquired during a marriage must be split equally when a marriage ends. This can include your:

  • home
  • car
  • business
  • furniture
  • pension
  • money

Any increase in value for property that you owned before the marriage is usually divided equally. This applies to the family home where you lived with your spouse. An exception to this would be where there is a prenuptial agreement in place stating otherwise. 

Time limits

If you need to go to court to claim property payments you have up to six years from the day you separated, or two years from the day your divorce is final (whichever comes first) to do so.

To file for divorce, you must be legally separated for at least one year.

Common-law Rights

Common-law couples are not legally obligated to split property that was purchased during or before the time they lived together. The property or assets belong to the person who bought them. If you contributed financially to your partner’s property you may have a right to part of it. But, unless your spouse agrees to pay you back, you would have to go to court to get that back.

A separation agreement can also serve as a contract outlining if you would get any money back for the contributions made towards the property or assets purchased by your partner. If you are going to make purchases while in a common-law relationship, you might consider outlining how to split property in the event of a separation. 

Time limits

If you need to go to court for a decision on the amount of an equalization payment, you have six years from the day you separated, or two years from the day your divorce is final (whichever comes first) to do so. 

*Equalization payment - this is the amount the partner with the higher total of assets and earning power has to pay the lower-earning partner with the lesser assets. This is how equalization payments are calculated.

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Last updated: March 7, 2023 4006561