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What legal issues should I think about when I separate or divorce?

Once you or your partner decide to separate or divorce, you have to make decisions on important things like:

  • who will stay in your home
  • how your children will be cared for and where they will live
  • who will make decisions for your child
  • financial support, including child support and spousal support
  • how you will divide property

For some things, like custody, access, child support, and spousal support the law doesn't treat people differently based on whether they are married or in a common-law relationship.

But for other things, like dividing property, the law treats people differently depending on whether they are married or are in a common-law relationship.

You can talk to a lawyer who can help you understand how being married or in a common-law relationship affects what the law says you have to do and what you can get when you separate or divorce.

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 at all, you may be able to find legal help in other places.

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1. Learn about your legal rights and responsibilities

Family law is mostly about the rights and responsibilities of partners, parents, and children. Rights are what the law says you can get. Responsibilities are what the law says you have to do.

If you're married or live together in a common-law relationship, the law gives you certain rights and responsibilities towards each other, both while you're together and if your relationship ends.

Some of the legal issues you have to think about depend on whether you’re married or in a common-law relationship, like:

Other legal issues don't depend on whether you're married or in a common-law relationship, like:

The rights and responsibilities you have after your relationship ends depends on the facts of your situation. And for common-law partners, it can depend on how long they lived together.

For example, the amount of spousal support you get or pay depends on things like the length of your relationship, your responsibilities during the relationship, and your income. And if you get divorced, you're no longer spouses, and may not qualify for benefits under your partner's medical plan if they have one.

2. Get your finances and documents in order

Once you have decided to separate, you need to get your finances and financial documents in order. For example:

Separate your finances

Open a bank account in your name only. Get all your regular payments like pay, social assistance, or government child care benefits deposited to this new account.

List all your assets and debts

Include financial assets like RRSPs, chequing and savings accounts, TFSAs, and insurance policies. Also include physical assets like your home, car, and jewellery.

Make a list of all debts such as a mortgage, line of credit, and credit card debt.

Copy important documents

Make copies of important documents, like:

  • pay stubs, both yours and your partner's
  • financial statements for bank accounts and investment accounts such as RRSPs
  • insurance policies, such as home, car, health, and life insurance
  • tax returns, both yours and your partner's
  • business tax returns, if you or your partner have a business
  • documents that show who owns property like your home and car
  • documents that have details about debts such as a car loan, credit card, and line of credit
  • regular bills such as hydro and water bills

Make a budget

Figure out a budget for you and your children. Add up all the income you get each month, and subtract all your expenses from it, such as rent, food, and clothing.

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3. Figure out the date you separated

The exact day that you and your partner separate is called the date of separation. This date is important because it affects things like:

  • How soon you can get a divorce: One way of getting a divorce is by being separated for a year. The date you separate is the day you start counting this one year period.
  • How you divide your property: Married couples have a right to a share in the value of property they got during their marriage. You're not entitled to a share in the value of property after the date you separate unless the property is jointly owned.

You may not be sure what your date of separation is. Or maybe you and your partner can't agree on the date you separated.

To figure out the date you separated, you can look at when you started to:

  • live in separate homes or sleep separately if you still live in the same home
  • separate your money and finances
  • do things on your own, such as having meals, going on vacations, or celebrating holidays apart

You can also look at documents like:

  • letters, emails, or messages where you or your partner talk about separating
  • documents that say you're not living as a couple. For example, if your income tax return says your marital status is "separated".
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4. Decide what your issues are

There are some common things that most couples have to decide, such as:

Children

If you have children, you and your partner have to decide on things like:

A parenting plan is a plan about how you and your partner will care for your children after you separate. A parenting plan checklist can help you with the things you may have to think about. Not everything on the checklist may apply to your situation.

Property, assets, and debts

You may have property, assets, or debts to divide. Your right to a division of property depends on whether you’re married or in a common-law relationship. Common-law couples don't have the same rights as married couples to a share in the value of property they bought when they were living together.

You also have to think about whether you want to move out of or stay in your home. Your right to stay in your home depends on whether you're married or in a common-law relationship. Married couples generally have an equal right to stay in the matrimonial home.

Spousal support

You and your partner have to decide on things like:

Divorce

If you’re married, you have to decide if you want a divorce and who will apply for one.

Safety

If your partner has abused you or your children, you may have to think about things to keep you and your children safe like:

  • making a safety plan to leave your home
  • getting a restraining order to keep your partner away from you and your children
  • getting an order for exclusive possession of the matrimonial home to allow you to stay in or return to the home you were living in and to keep your partner out of the home
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Reviewed: 
September, 2015