March 1, 2023

What to do when you separate in Ontario

The key information to know when you live in Ontario and are separating.

This applies to either married people or common law couples. Common law means you have either lived together in a relationship for at least three years or you have a child together and have lived together in a relationship for at least one year. Married means legally married.

Your situation and relationship are unique. You will be tempted to do research on Google and speak with family and friends. Keep in mind that everyone’s situation is different. What you learn may not apply to you or may not be accurate.

You should consult with a family law lawyer to protect yourself. You need to know your rights and responsibilities as a separated spouse in Ontario. You do not want to take steps that have unintended consequences.

How do Resolve Disputes?

Separation is a stressful time. Each relationship is unique. Getting advice from a family lawyer on your specific situation can help you plan for your post-separation life and resolve disputes with your spouse.

If you know someone who has separated and gone to Court, you have probably heard that it was expensive, frustrating and slow.

This is true for many reasons.

First, if they went to court, Courts do not have enough resources to handle all separating couples, so the process is slow. Second, in Court a judge, who does not know your family from any other, is the one deciding on what is best for you and your family based on limited information. Third, you will spend a lot of money in legal fees to have a lawyer representing you in Court. Money that you would likely prefer to spend on anything else other than a lawyer.

There are alternatives to Court for separating spouses. Those options include collaborative law, negotiations, mediation and arbitration. Each of these options puts spouses more in the driver’s seat than Court, except for arbitration which is very similar to Court. The other options also should be more cost effective, aside from Arbitration, which can be quite costly depending on the nature and extent of the issues. Consulting with a lawyer can help you identify what option might be appropriate in your situation. The goal of these alternative options is to come to a separation agreement.

What is a Separation Agreement?

A separation agreement is a written agreement that deals with all the issues arising from your divorce. For example, if you have children, you agreement would include a schedule of parenting time. If you own a home together, the agreement would address what happens with the home, whether a spouse is keeping it or the property is selling.

The lawyer will need some basic data about you and your ex-spouse, including both your incomes and financial situations. Is someone significantly in debt? Is only one spouse on title to the home? The lawyer will have specific questions on yours and your spouse’s financial situations during the relationship. The lawyer will need to know if you have children, the children’s schedule, for instance, if they are in childcare and yours and your spouse’s work schedules.

You can even come to a temporary agreement after separation. Temporary arrangements can deal with a temporary parenting schedule, temporary support, which spouse will reside in the house and household bills. A temporary separation agreement is called an Interim Agreement. Having a temporary solution while you work on the larger issues can be a helpful tool to reduce the stress and conflict following separation. It can calm immediate worries so you can focus on all the issues. The interim agreement gives both you and your spouse a level of predictability while you each gather the data necessary for the final separation agreement.

Financial Disclosure

In Ontario, the fundamental building block for separation is your financial disclosure. Disclosure is a fancy word for information. You need to fully disclose your income, assets and debts to your spouse for date of marriage and date of separation. You cannot just tell your spouse this information. You need to provide documents. Financial disclosure, includes documentation of your income, assets and debts. You will need to provide everything from your pay stubs, tax returns to credit card statements.

If you are not up-to-date on your income taxes, it is time to file. This includes your tax returns and Notices of Assessment for the past three years. For example, if you separate in 2023, you need to provide income tax returns and Notices of Assessment for 2020, 2021 and 2022.

Moving Out

If possible, you should try to keep your finances as separate as you can after separation. This is difficult if you are still living together.  Before you move out, you should have a discussion on what household expenses will be paid by each of you.  If you and your spouse have credit cards that are linked, then you may want to establish separate credit cards. This is something you should discuss with your spouse. Cancelling their credit card without notice could lead to unintended negative consequences.

You may need to keep contributing to a joint account or your spouse’s account to cover household bills, like the mortgage. You should not be unilaterally cancelling household bills or payments without notice to your spouse. This kind of behaviour leads to conflict and is not cost-effective. Being upfront in discussions with your spouse could save you time, money and stress.

You should have your financial and identification documents stored somewhere safe. Do not leave them in the home after you move out. You should take these documents with you. You should also set up open your own bank account to keep your own emergency fund in case you are moving out and need first and last month’s rent or need to pay a lawyer.

You should get legal advice from a lawyer to protect your interests and so you understand your rights and responsibilities under the law. Getting that advice does not have to be costly. Remember, our service is based on the time you wish to pay for. It keeps you in control of your costs.

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