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Legal separation is never easy, but once it’s done, it can be hard to know what to expect and where to go from that point. With the ink barely dry and a new life ahead, it can be scary to move ahead without knowing what’s to come.
But what is a separation agreement? Does it apply to married couples, common-law couples, or both? What are the steps to obtain a legal separation, and what do you do once the paperwork is finalized? In this blog, we’ll be exploring these concepts and more with the expertise of MGD Lawyers, an experienced family law firm based in Ontario.
If you want to prepare yourself for the aftermath of a separation agreement, this blog is definitely for you.
When discussing separation in Ontario, this usually refers to when you and a former spouse (whether married or common-law) decide to live separately. If you're legally married, separation isn't considered the same as divorce; this means that, despite not being "together", the marriage has not legally been dissolved. Only legal court proceedings can officially end a binding marriage.
But how do you legally separate in Ontario, including whether you're legally married or common-law? And what can you truly expect to come after the process is completed? Here's a general guide on the process.
Legal separation is considered as soon as you and your spouse are living separately and apart from each other. This could mean several different things, but these are the most common circumstances you're likely to run into:
The spouses are living in different residences with separate finances.
If the spouses continue to live together, they're living in separate spaces in the residence and have divided their finances.
Everyone has agreed to a formal separation agreement (more on this later).
Effectively, being separate and apart means one or both of the parties making a conscious, active effort to live independently, even if they haven't yet moved out of a shared residence.
This separation is defined by the complete breakdown of the relationship, as in the dissolution of physical intimacy, a complete separation of finances, and living individual social lives, even if the former couple are still living in the same space.
Think of it as proof that each party is actively working to move on from the relationship with obvious intentions.
When a couple makes the difficult decision to separate, they often enter into a formal agreement that defines their rights and responsibilities during the separation, including financial obligations and custodial commitments.
It's essential that each party:
Confirm that both parties understand the expectations outlined in the agreement.
Confirm that both parties agree the agreement is fair and balanced, and that it was entered into freely and without malice.
Ensure all shared financial information is disclosed honestly and accurately.
Keeping things amicable will always make the legal process simpler in the long run. Getting things in writing will help to protect both parties, especially if you’re not able to immediately separate from a shared residence.
Children can complicate the separation process. There are a lot of considerations that go into dissolving a relationship when children are involved, such as:
Are the children financially dependent on one or more of the parents?
Can one parent afford to support the child alone, or will they require assistance?
Who will be the primary advocate for the child’s education, health, welfare, etc.?
Who will the child live with the majority of the time?
What, if any, visitation agreements will be in place?
Are there any additional costs, such as childcare, educational support, or disability support?
It’s highly recommended that, if you plan to separate, even if you want to keep things informal, you consult a family lawyer. Especially if children are involved. While you may want to “keep things out of the courts,” keeping you and your child protected and cared for is worth seeking legal counsel.
To make a legal separation legally binding, a lawyer generally has to review it first. Yes, you and your ex-spouse can certainly make your own agreement that works for both of you but having a family lawyer review it is essential to make sure it's fully valid.
Seeking independent legal advice can help you ensure the legal separation agreement you've drafted is not only fair but also coincides with Ontario law. Both parties should have a lawyer review the agreement before proceeding to ensure their best interests are kept at the forefront.
Some lawyers in Ontario offer unbundled legal services, meaning they may charge a reduced fee to review a separation agreement rather than draft the entire document. Having a lawyer review the agreement can help ensure you understand your rights and obligations and confirm that the terms are consistent with Ontario family law requirements.
Once finalized, the separation agreement must be signed and dated by both parties in the presence of a witness, who must also sign the document. The witness cannot be a party to the agreement. This step helps ensure that the agreement is legally valid and enforceable in Ontario.
In Ontario, the support terms in a separation agreement (such as child support or spousal support) can be enforced by filing the agreement with the court. To do this, you must complete Form 26B: Affidavit for Filing Domestic Contract or Paternity Agreement, which confirms that the agreement is valid and includes support provisions.
If you need assistance completing Form 26B, Steps to Justice offers a helpful Guided Pathways tool that walks, you through the process step by step.
Once completed, bring your signed separation agreement and Form 26B to the family court counter to have the agreement added to your court file. There is no fee to file a separation agreement for the enforcement of support in Ontario. After filing, the support terms can be enforced through the court, including by the Family Responsibility Office if needed.
While this process still has some legal aftermath (fully separating finances, assuming you haven’t yet, dividing assets, moving out, etc.), there are a lot of human elements that come with the conclusion of a legal separation that aren’t often considered.
Let’s go through some of the biggest transitions you can expect:
Going from Dual Income to a Single Income: In Ontario, many residents rely on having a combined income to afford the cost of living. When separating, one or more parties may be accustomed to a certain lifestyle and may find it difficult to transition from two incomes to one. This is why you should consult a family lawyer to ensure that all financial concerns are addressed before legal separation begins.
Separation of Shared Property: The Property division is a significant legal topic. Generally, unless both parties own the shared home equally, one person may continue to live in the property while the other moves out, or the parties may decide to sell the home and divide the proceeds. In either situation, at least one person will likely need to leave a place they once called home and begin establishing a new living arrangement elsewhere.
Dividing Child Custody & Adapting Schedules: When living together and sharing parental responsibilities, it’s generally easier to manage sudden scheduling changes. However, after a separation agreement, it becomes essential to have a clear, well-defined set of expectations regarding childcare and parental rights. This requires a strong foundation of healthy co-parenting, with the children’s well-being being at the forefront of the agreement.
Personal Mental Health: It never feels good when a relationship ends, at least, not most of the time. Even if the separation is something you want, the weight of sunk costs, along with feelings of personal failure, anxiety, depression, and uncertainty, can feel overwhelming in the aftermath. This is why seeking mental health support and having a family lawyer on your side are important when making the transition.
Newfound Personal Freedom & Experiences: Separation is scary and stressful enough, so it’s important to remember that, while it may be difficult, it isn’t the end of the road. It also isn’t always a complete net negative; sometimes, a separation agreement is the step you need to take to move in the right direction. Closing some doors opens new ones.
“It’s never too late to become who you want to be. I hope you live a life that you’re proud of, and if you find that you’re not, I hope you have the strength to start over.” ~ F. Scott Fitzgerald.
MGD Lawyers are among the most sought-after litigation and family lawyers in Southern Ontario. Since 2007, our team has made it our mission not only to provide unparalleled support to our clients through our extensive legal knowledge. We leverage collective decades of experience to secure favourable outcomes. Our team operates with a deep intrinsic understanding of sensitive family matters, including the painful realities of separation. You can trust that we will handle your case with fierce professionalism and genuine empathy. Contact us today.
We are one click or phone call away from helping you navigate this sensitive time in your life. Get the help you need.
30 Queen Street North
Kitchener, ON N2H 2G8
T. (519)742-4297
F. 519-744-5526
E. reception@mgdlawyers.ca
