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We're not married. What if we can't agree on what happens to our property and debts after we separate?

If you and your partner cannot agree on what happens with your property and debts, with or without the help of lawyers, you have two options. You can ask a family law professional to help you resolve your issues. Or, you can go to court and ask a judge to decide.

Family law professionals

There are different types of family law professionals who can help you and your partner resolve your issues. These are neutral people who are trained to work with both of you to help you reach an agreement or make a decision for you.

These processes are sometimes called alternative dispute resolution (ADR) because they help you solve your issues without going to court.

Go to court

If you and your partner still cannot agree even with the help of a family law professional, or if ADR is not the right option for you, one of you has to start a family law court case.

A family court makes decisions based on the family law rules and laws. Going to court can be a complicated process and it can take a lot of time. It can be stressful and expensive, but it is sometimes necessary to decide your issues.

Changing the process

You don't have to stick with one of these options. Sometimes you can use both or switch from one to the other.

For example, you and your partner might not be able to solve your case with the help of a family law professional, so you decide to go to court.

Or you might start a court case first, but then you and your partner agree to pause the case while you try to reach an agreement with the help of a family law professional.

Time limit

The usual time limit to make a claim for a share of property that is not real estate, such as for an interest in your common-law partner's business or car, is 2 years after you separate.

The usual time limit to make a claim for a share of property that is not real estate, such as for an interest in your common-law partner's business or car, is 2 years after you separate.

Sometimes a court gives you more time. But you have to explain why you needed more time to make a property claim.

Domestic contract

If you signed a cohabitation agreement but one of you no longer wants to follow it, you or your partner can ask the court to make an order that divides your property in the way you agreed to in your agreement.

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1. Think about your options

There are family law professionals who can help you and your partner resolve your issues. These are neutral people who are trained to work with both of you to help you reach an agreement or make a decision for you.

Family law professionals work in:

  • mediation
  • arbitration
  • mediation-arbitration
  • collaborative family law

All of these processes are sometimes called alternative dispute resolution (ADR) because they help you solve your issues without going to court. Deciding which process is best for you depends on your situation and what you want. For example, a mediator doesn't make decisions for you, but an arbitrator does.

Some of the reasons to use ADR instead of going to court are:

  • You have more control over what happens to your case.
  • It can be faster and cheaper.
  • It can be less stressful.
  • It takes place in a private setting.

But, there are some situations where it may be better not to use ADR, such as where:

  • There is a history of partner abuse, mental illness, or drug abuse.
  • You can't talk to your partner.
  • You can't work cooperatively with your partner.

Each family court location in Ontario offers subsidized mediation services. You can get up to 8 hours of mediation for a fee that is based on your income whether or not you’re in court. If you’re already in court, you may be able to get up to 2 hours of mediation at the court free of charge.

You can also find mediators who offer their services at lower rates through JusticeNet. JusticeNet is a not-for-profit that helps people in Ontario whose income is too high to get legal aid and too low to afford standard legal fees.

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2. Get help from a family law professional

You and your partner must agree to use an alternative dispute resolution (ADR) process and you must agree on the details of the process. This includes:

  • which type of family law professional will help you resolve your issues
  • how your lawyers, if any, will be involved
  • who will pay for the costs
  • when you will do it

If you and your partner agree on the details of the ADR process, put your agreement in writing before you start. This document can be called a participation agreement, arbitration agreement, or agreement to mediate.

The agreement might include:

  • the role of the family law professional who is helping you resolve your dispute
  • how your lawyers, if any, will be involved
  • the issues to be decided
  • how to exchange documents
  • how to end the process
  • who will pay

The family law professional who is helping you usually drafts the agreement and includes details about you, your partner, and your issues.

Before signing the agreement:

  • Review it carefully. If you have a lawyer, you should have them review it as well.
  • Make sure that it includes all the important details about the process.
  • Ask any questions you have.
  • Make sure that you understand it.
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3. Go to court

If you and your partner still cannot agree even with the help of a family law professional, or if this is not the right option for you, one of you has to start a family law court case.

Going to court can be a complicated process and it can take a lot of time. It can be stressful and expensive, but it is sometimes necessary to decide your issues.

You also have to decide which court to go to, if you’re making a claim to the property that your common-law partner owns.

If you're making a property claim along with other claims in family court, such as a claim for spousal support or custody of children, you go to family court. You can go to either the Superior Court of Justice or the Family Court of the Superior Court of Justice. The Ontario Court of Justice cannot divide property.

This family law court process flowchart explains each step in a family law court case. It tells you what happens and what you have to do if you start a court case or if you’re responding to a court case your partner started.

A family court decides based on the family law rules and laws. Before deciding about what happens to your property and debts, a judge looks at things like:

  • whether you have a signed cohabitation agreement or domestic contract
  • the facts of your case, such as how long you lived together and what you each contributed to each other’s property

If you're only making a claim to your common-law partner’s property, you may have to go to a different non-family court. Depending on the facts of your case, you may have to go to a Small Claims Court for example if you are asking for money or property that is worth $25,000 or less.

You can talk to a lawyer who can help you understand what the law says about what you might get if you make a property claim in court. A lawyer can also explain why you might choose to go to court and help you through the process.

If you can't afford to hire a lawyer for your whole case, some lawyers will provide "unbundled" or "limited scope" services. This means you pay them to help you with part of your case.

If you can't afford to hire a lawyer, you may be able to find legal help in other places.

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Reviewed: 
September, 2015