Nelligan Law

Separation does not require a court, but it does create legal rights

In Ontario, separating spouses do not need a judge to separate, and many never see a courtroom. What separation does trigger is a set of legal entitlements — to property division, to support, and in respect of decision-making and parenting time for children. Those entitlements exist whether or not anyone writes them down, which is exactly why informal arrangements cause problems years later.

Married and common-law are not treated the same

Married spouses in Ontario have a statutory right to an equalization of net family property. Common-law partners do not, no matter how long they lived together, and have to advance claims on other legal bases such as unjust enrichment or a constructive trust. Support obligations, by contrast, can arise for both. People frequently assume the two statuses converge over time in Ontario. They do not.

The separation agreement is the document that matters

A separation agreement can settle property, support and parenting without litigation, and it is binding. It is also the place where things go wrong: agreements are set aside where a party did not disclose their finances properly, did not understand what they were signing, or did not have the chance to get independent legal advice. Full financial disclosure from both sides is what makes the agreement hold.

When it is worth getting advice early

If there is a matrimonial home, a pension, a business, or a significant difference in income between the parties, the numbers are usually large enough that early advice pays for itself. The same is true where parenting arrangements are contested, or where there is any history of family violence — in which case the process itself needs handling differently.

This article is general information about Ontario family law, not legal advice, and it is not a summary of the firm's own writing. Every family's situation is different — speak to a lawyer about yours.