If you are separating in Ontario, four things protect your position more than anything else: knowing whether the law treats you as married or common-law, obtaining full financial disclosure from both sides, understanding the deadlines that apply to your claims, and getting advice before you sign anything.
Almost everything else follows from those four. This article explains what each one means in practice, and clears up several assumptions that lead people into avoidable difficulty.
Married or common-law? It changes almost everything
This is the first question a family lawyer will ask, because the two situations are governed by different rules.
Married spouses have the right to an equalization of net family property, a calculation that compares how much each spouse’s net worth grew during the marriage, with the spouse whose net worth grew more generally paying the other half the difference. Married spouses also have equal rights to possession of the matrimonial home, regardless of whose name is on title.
Common-law partners in Ontario do not have equalization rights, no matter how long they lived together. Property is generally divided according to who owns it. A common-law partner who contributed to property held in the other’s name usually has to advance a claim in unjust enrichment or constructive trust, a fact-specific claim that is more difficult and more expensive to run than equalization.
Common-law partners may, however, be entitled to spousal support. In Ontario, that generally requires cohabiting continuously for at least three years, or being in a relationship of some permanence where the partners are the parents of a child. Child support obligations do not depend on marital status at all.
What “separation” actually means
Separation in Ontario is not a filing or a form. Spouses are separated when at least one of them intends the relationship to be over and acts consistently with that intention. It is legally possible to be separated while still living under the same roof, though that can complicate proving the separation date later.
The date of separation matters a great deal. For married spouses it is the valuation date used to calculate equalization, so it fixes the value of the assets and debts that go into the calculation. If the date is genuinely in dispute, say so early rather than letting an assumed date drive the numbers.
Separation is also not the same as divorce. A divorce is a court order that legally ends the marriage. The usual basis is that the spouses have lived separate and apart for one year. An application can generally be started before the full year has passed, but the divorce itself will not be granted until it has.
Not sure where you stand? A single consultation is often enough to tell you which set of rules applies to your situation and what your realistic options are. H&H Law Group can be reached at 416-572-7483.
“If I move out, do I lose the house?”
This is one of the most common fears we hear, and the short answer for married spouses is no.
Moving out of the matrimonial home does not forfeit your ownership interest, your equalization claim, or your right to return. Under Ontario’s Family Law Act, both married spouses have an equal right to possession of the matrimonial home while they are spouses, whether or not both names are on title. Neither spouse can sell or mortgage it without the other’s consent or a court order.
The matrimonial home also gets unusual treatment in the equalization calculation. Normally you deduct the value of what you brought into the marriage. The matrimonial home is the exception: if you owned the home before the marriage and it was still the matrimonial home on the date of separation, you generally do not get to deduct its value at the date of marriage. People are frequently surprised by this, particularly where one spouse brought the home into the marriage.
None of that makes moving out cost-free. It affects budgets, it affects the day-to-day arrangement for the children, and it can affect what a court later treats as the established routine. It is a decision worth discussing with a lawyer first, but not one to avoid out of a fear that you are signing your rights away.
For common-law partners, the analysis is different: the equal-possession rule does not apply, and rights to the home depend on ownership and on any trust claim that can be established.
Parenting: the language changed, and so did the framing
Ontario and federal legislation no longer use “custody” and “access.” The current terms are:
- Decision-making responsibility – the authority to make significant decisions about a child’s health, education, religion and extracurricular activities.
- Parenting time – the time a child spends in each parent’s care.
- Contact – time with someone who is not a parent, such as a grandparent.
The change is not merely cosmetic. It moves the conversation away from who “wins” the children and toward how responsibilities are allocated.
The only test a court applies is the best interests of the child, with primary consideration given to the child’s physical, emotional and psychological safety, security and well-being. Courts weigh a list of factors including the child’s needs and age, the nature of the child’s relationship with each parent, each parent’s willingness to support the child’s relationship with the other parent, any history of family violence, and the child’s own views where they can reasonably be determined.
Two points worth stating plainly:
- There is no legal presumption of equal parenting time. Equal or near-equal schedules are common where they suit the family, but they are not a starting entitlement.
- There is no presumption favouring either parent. The assumption that children automatically remain primarily with their mother has no basis in current Ontario law.
Most parenting arrangements in Ontario are settled by agreement rather than decided by a judge.
Child support and spousal support
Child support is the more predictable of the two. It is calculated under the Federal Child Support Guidelines, using a table amount based on the paying parent’s gross annual income, the number of children, and the paying parent’s province of residence. On top of the table amount, parents typically share section 7 expenses, special or extraordinary costs such as childcare, health expenses not covered by insurance, and some extracurricular and post-secondary costs, in proportion to their incomes. Where a child spends at least 40% of the time with each parent, a different and more discretionary approach applies.
Child support belongs to the child. It cannot be traded away in exchange for a parenting arrangement or a larger share of property, and a court will scrutinise an agreement that appears to do so.
Spousal support is far less mechanical. There are two questions, in order: is there an entitlement, and if so, what amount and for how long. Entitlement can arise from a contract, from need, or from the economic effects of the relationship and its breakdown, for example, where one spouse’s career was set aside to raise children.
Only after entitlement is established do the Spousal Support Advisory Guidelines come into play. These produce a range of amounts and durations, and they are widely used in negotiation and referred to by courts. They are advisory, not binding law. Any online calculator you have run gives you a rough range at best, and depends entirely on the income figures put into it.
Both types of support are built on income disclosure. If you suspect the disclosure you have received is incomplete, particularly where a party is self-employed or has an interest in a corporation, that is a matter to raise early rather than after an agreement is signed.
Support obligations set out in a court order, or in a separation agreement filed with the court, can be enforced through Ontario’s Family Responsibility Office.
Equalization, and the deadline most people do not know about
For married spouses, the calculation is mechanical even though gathering the inputs is not:
- Value each spouse’s assets and debts on the date of separation.
- Deduct the net worth each brought into the marriage, with the matrimonial home exception noted above.
- Subtract certain excluded property, such as gifts and inheritances received from a third party during the marriage, and damages for personal injury, provided they can be traced and were not put into the matrimonial home.
- Compare the two figures. The spouse with the larger increase generally pays the other half the difference.
There is a limitation period on equalization claims. Under the Family Law Act, an application must generally be brought by the earliest of two years after the marriage is terminated by divorce or a judgment of nullity, six years after separation, or six months after the first spouse’s death. Courts have limited power to extend the deadline, but it is not something to rely on. If you separated some years ago and never resolved property, this is worth checking against a calendar now.
Before you sign anything
Most Ontario family matters resolve by agreement. A well-drafted separation agreement is usually faster, cheaper and less damaging than litigation, and it lets the parties design terms a court could not.
But an agreement is only as durable as the process behind it. In Ontario, a separation agreement generally must be in writing, signed by both parties, and witnessed. Beyond those formalities, a court may set an agreement aside where a party failed to disclose significant assets or debts that existed when it was signed, where a party did not understand the nature or consequences of the agreement, or on ordinary contract grounds such as duress or undue influence.
This is why independent legal advice matters. It is not a formality tacked on at the end. It is the step that makes an agreement hold, and the step that tells you whether the deal in front of you is one you should be making.
Family law matters in Peel, Halton and across the GTA are heard in the courts serving the region where the parties live. Which court and which process applies depends on the relief you are seeking and where your matter is based.
Speaking with a family lawyer
H&H Law Group is a family and corporate law firm with offices in Mississauga and Oakville, serving clients in Milton, Halton, Peel and throughout the Greater Toronto Area. We advise on separation, divorce, parenting arrangements, child and spousal support, property division, and separation agreements.
If you are unsure where you stand or if someone has asked you to sign something, a conversation with an Ontario family lawyer can help you understand your options before decisions become difficult to undo. Contact us to arrange a confidential consultation.