Separating in Ontario: what to do in the first week, and what to bring to your first meeting

Write down the date you separated, keep the children's routine steady, do not sell, mortgage or refinance the family home without the other spouse's consent, and start collecting financial records. The separation date usually becomes the valuation date for property and starts the clocks for a divorce and a property claim. Bring those records, and any court papers you have received, to your first meeting with a lawyer.

The first week is not the time to settle everything. It is the time to avoid steps that are hard to undo. For the broader picture of ending a marriage, see our divorce page; this checklist also works for unmarried couples, with the differences noted below. If your marriage or property has ties to Iran, our page on what a Persian-speaking family lawyer in Toronto can do adds the questions that come up for Iranian-Canadian families.

Why does the separation date matter so much?

Keep a note of the date and how you know it: the day one of you moved out, a message saying the marriage was over, a change in sleeping or money arrangements. Values for equalization are taken as of the close of business on the valuation date (Family Law Act, section 4(4)), so account balances that day matter.

The first-week checklist

What about the family home?

Under Part II of the Family Law Act, the matrimonial home is any property that a spouse has an interest in and that the spouses ordinarily occupied as their family residence at separation (section 18). Both spouses have an equal right to possession, regardless of whose name is on title (section 19). Neither can sell or mortgage it without the other joining or consenting, unless rights were released by a separation agreement or a court authorized it (section 21). Either spouse can also register a designation of the matrimonial home on title (section 20). More detail is in whether your spouse can sell or mortgage the family home without your consent. These rules are for married spouses; unmarried partners should get advice about the home specifically.

What about the children?

Ontario's Children's Law Reform Act says parents are equally entitled to decision-making responsibility. But once parents live apart and the child lives with one of them with the other's consent, implied consent or acquiescence, the other parent's right to exercise decision-making responsibility (not their parenting time) is suspended until a separation agreement or order says otherwise (section 20(4)). The arrangement you accept in the first weeks can therefore matter.

A parent who plans to change residence must give written notice to the other parent, and a move that is likely to significantly affect the child's relationship with the other parent is a relocation, which needs at least 60 days' written notice (sections 39.1 and 39.3). If you are worried about a trip abroad, read what an Ontario court can order about travel and passports.

What should you bring to your first meeting?

Bring any documents you have received, and a short summary of what has happened. If you do not have paperwork yet, bring what you can; our frequently asked questions cover consultations in Persian and French and confidentiality. A full list looks like this:

• Identity and status: photo ID, your marriage certificate (with a certified English translation if it is not in English), and any marriage contract, cohabitation agreement or mahr document.
• Court papers: anything you have been served with, such as an application, a Mandatory Information Program notice or an automatic order. Note the date you were served; the answer period is 30 days.
• Income: your last three years of tax returns and notices of assessment, and a recent pay statement or employer letter, as listed in section 21 of the child support guidelines.
• Property, as close to the separation date as possible: bank, investment, pension and savings statements; the property tax assessment for Ontario real estate; life insurance; business records if you are self-employed; mortgage, line of credit and credit card statements. These follow the list in rule 13(3.3) of the Family Law Rules; see which financial statement you will file.
• Property, as of the wedding date: whatever shows what you owned and owed when you married, and proof of any gift or inheritance received during the marriage.
• Property outside Canada: deeds, valuations and account records, with translations if you have them. See whether property in Iran counts in Ontario.
• Children: their schedule, school and daycare details, and any messages about parenting arrangements.

What if you were not married?

Equalization of net family property under Part I of the Family Law Act is for married spouses. Unmarried partners can still claim support if they lived together continuously for at least three years, or were in a relationship of some permanence and are the parents of a child (section 29); see common-law spousal support in Ontario. Child support and parenting rules apply to children whether or not their parents were married.

What comes after the first week?

If talks do not lead to an agreement, a case starts with an application in the right court. In Toronto that depends on what you are asking for; see which Toronto family court handles your case. The steps after filing are in what happens after you start a family case. Our guide for Toronto families lists the local courthouses and services. If you live in Richmond Hill, Thornhill, Vaughan or Markham, read how York Region family cases work instead. If you are in danger, call 911 first.

What changes the answer?

• Whether you are married. Equalization and the matrimonial home rules in Parts I and II of the Family Law Act apply to married spouses; unmarried partners have support rights after three years together or with a child (s. 29).
• Whether there is a risk of violence. Safety comes before any checklist; see how family violence affects parenting decisions.
• Where the children are living. Accepting an arrangement can suspend the other parent's decision-making until an agreement or order (CLRA, s. 20(4)).
• Whether there is a mahr or marriage contract. It may change the property numbers; see whether a mahr is enforceable in Ontario.
• Whether property is outside Canada. It is still disclosed and valued as of the separation date.
• Whether you are served with court papers. The 30-day answer period then runs (Family Law Rules, r. 10(1)).

A worked example

For example, imagine a couple in Richmond Hill who agree on a Sunday evening that the marriage is over. The husband moves to his brother's apartment the next day, and the two children stay with their mother. The wife writes down the date and saves the message in which they agreed to separate. She downloads that day's bank and investment balances, finds the marriage certificate and the mahr document, and asks for a certified English translation. When her husband suggests refinancing the house to "split the equity now", she declines until both have legal advice. She also keeps the children's passports in a safe place while they discuss travel over the holidays. A week later she brings the documents to her first meeting. This is a hypothetical walk-through, not a prediction of any result.

What mistakes do people make in the first week?

1. Signing a quick agreement drafted by a friend, relative or the other spouse.
2. Moving money or closing joint accounts without a record of the balances on the separation date.
3. Leaving the home and the children without thinking about how that arrangement may be treated.
4. Posting about the separation or sending angry messages that later become evidence.
5. Ignoring court papers, or losing track of the date they were served.
6. Forgetting the deadlines; see the deadlines in an Ontario family case.

What to do this week: the short version

1. Write down the separation date and save the evidence of it.
2. Record every account balance as of that date.
3. Keep the children's routine steady and agree on interim arrangements in writing if you can.
4. Do not sell, mortgage or refinance the family home on your own.
5. Gather the documents in the list above.
6. Book a first meeting with a lawyer before signing anything.

Frequently asked questions

Do I have to move out?

No. Both married spouses have an equal right to possession of the matrimonial home, whoever owns it (Family Law Act, s. 19). Where safety is at risk, get advice and help immediately.

Can we be separated while still living in the same home?

The Divorce Act counts any period during which the spouses lived apart and either of them intended to live separate and apart (s. 8(3)(a)). Whether that happened under one roof depends on the facts, so keep a clear record of when and how the relationship ended.

Should I tell the bank or close joint accounts?

Record the balances on the separation date first, because values are taken as of that day. Get advice before closing or emptying joint accounts.

What if my spouse wants to take the children to Iran for a visit?

Do not sign a consent letter until you have advice. A court can order terms that limit travel and require passports to be handed over; see the travel guide linked above.

Is my first meeting confidential?

Yes. A first meeting with a lawyer is treated in confidence, and consultations at Sarbazevatan Law are available in English, Persian (Farsi) and French.

Do I need to file anything in court this week?

Usually not, unless there is an emergency or you have been served. In an emergency involving a child's safety or removal from Ontario, a case can start in any municipality so an urgent motion can be heard (Family Law Rules, r. 5(2)).

A first meeting with Sarbazevatan Law is treated in confidence, and consultations are available in English, Persian (Farsi) and French. Call +1 (416) 628-2041 or reach us through the contact page.