What Not to Do When Separating in Ontario: 10 Mistakes to Avoid

Decisions made early in a separation can affect how property is divided, how parenting arrangements are decided and how support is set. Below are ten things to avoid when you separate in Ontario. What to gather before you separate, and how property division is calculated, is covered in “Separating in Ontario: What to Prepare Before You Divide Property.”

1. Do Not Rush to Leave the Home Unless Safety Is at Risk

Moving out does not mean giving up your rights to the matrimonial home or other property. Married spouses have an equal right to live in the matrimonial home regardless of whose name is on title, and neither spouse can sell or mortgage it without the other’s written consent or a court order. However, how the children have been living since the separation may be considered when temporary parenting arrangements are decided, so think through how your time with the children will continue before you leave. If you take the children and leave without your spouse’s consent before there is a separation agreement or court order, your spouse may bring an urgent court application to have the children returned or a temporary parenting schedule set. If you are worried about your safety or your children’s safety, safety comes first. If you are in immediate danger, call 911.

2. Do Not Threaten or Use Violence Against Your Spouse

Under the Divorce Act, family violence includes not only physical violence but also threats, a pattern of coercive and controlling behaviour, and psychological and financial abuse. Courts consider family violence and its effects when deciding what is in the best interests of the child. This kind of behaviour will count against you in parenting decisions, and if it leads to criminal charges, the cost and time involved increase considerably.

3. Do Not Involve the Children in the Conflict

Do not argue about the details of the separation or criticize your spouse in front of the children, and do not use them to pass messages between the two of you. Avoid posting complaints about your spouse on social media. Your children or their friends may see the posts, and posts can be used as evidence in court.

4. Do Not Interfere With the Children’s Relationship With Both Parents

The Divorce Act now uses the terms parenting time and decision-making responsibility in place of custody and access (amended in March 2021). Parenting time is the time a child spends in a parent’s care, and decision-making responsibility is responsibility for significant decisions about the child, such as education, health and religion. Ontario law uses the same terms. Courts decide only on the basis of the best interests of the child. Unless there is a safety concern, support the children’s relationship with both parents, and do not neglect your own relationship with them.

5. Do Not Move With the Children Without Giving Notice

If a person with parenting time or decision-making responsibility plans to move with a child, and the move would significantly change the child’s relationship with others who have a role in the child’s life, they must give written notice in the prescribed form at least 60 days before the expected move. Notice must go to everyone who has parenting time, decision-making responsibility or contact with that child. Those who receive notice can object, and if no agreement is reached, the court decides. Where there has been family violence, you can ask the court for an exception to the notice rules.

6. Do Not Empty Joint Accounts or Deliberately Reduce Your Income

Withdrawing money from a joint bank account on your own or running up a joint line of credit will be viewed unfavourably by the court. If you move from a higher-paying job to a lower-paying one after separation without good reason, the court may set child or spousal support based on a higher income than you actually earn.

7. Do Not Cut Your Spouse Off Financially

If your spouse has been financially dependent on you, do not suddenly stop covering living expenses. Child support and spousal support can be ordered retroactively, so delaying payment can leave you owing a larger amount all at once.

8. Do Not Sign an Agreement Without Legal Advice

The Ontario government recommends that each spouse have their own lawyer review a separation agreement before signing it. A separation agreement cannot easily be changed once it is signed. Before you agree, make sure you have received full information about your spouse’s property, debts and income. If the matter goes to court, both of you must file a sworn financial statement.

9. Do Not Make Major Purchases or Dispose of Property Before an Agreement

Buying a house or a car, taking an expensive trip or making other major purchases before there is a separation agreement or court order can affect the overall financial settlement. Selling property acquired during the marriage or transferring it into someone else’s name is even more serious. If such steps come to light, you can lose credibility with the court, which can hurt you in property division and support decisions.

10. Do Not Miss the Deadline for Property Claims

If you need to go to court for an equalization payment, you must do so within six years of the date of separation or two years of the date the divorce becomes final, whichever comes first. The time keeps running while you negotiate, so if an agreement is taking a long time, check the deadline first.

How Jenna Lee Law Can Help

Jenna Lee Law offers consultations on preparing and reviewing separation agreements, property division, parenting arrangements and support. Our principal lawyer is also a Chartered Professional Accountant (CPA), so the tax consequences of dividing property are reviewed at the same time.