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Make a separation agreement

If you and your partner mostly agree on what you want to happen when you separate, you can put what you've agreed on in a separation agreement. A separation agreement is a written contract that you and your partner make that says how you will deal with your issues.

You can make a separation agreement if you’re married or in a common-law relationship.

If you’re married, you don't get a divorce by making a separation agreement. You have to apply to the court to get a divorce. But, you can agree on when and how to get a divorce in your separation agreement.

You don't need a lawyer to make a separation agreement. But it's a good idea to get your own legal advice before signing one. For example, a lawyer can help you understand your rights and responsibilities toward your children and your partner, and the rules your agreement has to follow to make it legal.


When to make a separation agreement

You can make a separation agreement at any time after you separate. But there are time limits to ask your partner for some things, like dividing property. For example, you have 6 years from the date of separation but only 2 years from the date of your divorce to divide property.

You don’t have to wait until you and your partner agree on everything before making a separation agreement. You can make a separation agreement on the things you agree on, while you continue to work on resolving your other issues. For example, if you agree on decision-making responsibility, parenting time, and child support, you can make an agreement dealing with those things, while you continue to work on your property issues. Decision-making responsibility and parenting time used to be called custody and access.

You can also make a separation agreement that lasts for a certain period of time. For example, if you agree on where your children will live just for the summer, you can say the agreement ends in September.

You can also change a separation agreement at any time by making a new one, if you and your partner agree to the changes.


Why have a separation agreement

There are many reasons to make a separation agreement. An agreement:

  • can be faster, cheaper, and less stressful than going to court
  • lets you and your partner decide what works best for you and your family, instead of letting the court decide
  • lets others involved in your children's care, such as their school, daycare, and doctor, know what has been agreed on
  • makes it easier to prove what you and your partner agreed on than with a verbal agreement
  • can be used to get help from the Family Responsibility Office if there is a problem getting child support or spousal support

But, making a separation agreement may not be the best thing to do in situations where:

  • you're afraid of your partner because of a history of partner abuse
  • there are serious mental health or drug abuse issues
  • you can't talk to your partner even with help
  • you can't work together with your partner even with help

In those situations, you may need a family law professional like a mediator to help resolve your issues. The Step Get help from a family law professional gives you more information about this. Or, you may need to get a court order that you can enforce. This means that the court can order you or your partner to do what the court order says.

Ontario has 3 different courts that deal with family law issues. These are the:

  • Family Court Branch of the Superior Court of Justice
  • Superior Court of Justice
  • Ontario Court of Justice

It's important that you go to the right court. Rule 5: Where a case starts and is to be heard tells you where you should start your family law case.

Because some courts don’t deal with certain family law issues, you have to start your case in a court that:

  1. deals with the family law issues that you need to resolve, and
  2. is in the municipality where you or your partner lives.

But, if your issues are about decision-making responsibility or parenting time, you should go to the court in the municipality where your child lives.

If you’re not sure which court to go to, call the family court in your municipality to ask.

This is the only court that hears all types of family law cases.

In places without a Family Court Branch of the Superior Court of Justice, family cases are heard in either the Superior Court of Justice or the Ontario Court of Justice.

Superior Court of Justice

This court hears family law cases that deal with:

  • divorce
  • dividing property
  • matrimonial home
  • child support
  • spousal support
  • decision-making responsibility
  • parenting time
  • restraining orders
  • appeals on adoption and child protection

Ontario Court of Justice

This court hears family law cases that deal with:

  • child support
  • spousal support
  • decision-making responsibility
  • parenting time
  • restraining orders
  • enforcing support in a separation agreement
  • adoption
  • child protection

Court fees

The Ontario Court of Justice has no court fees. But, if your case is at the Superior Court of Justice or the Family Branch of the Superior Court of Justice you have to pay court fees. These include:

  • $202 to file an Application
  • $212 to file an Application that includes a divorce
  • $161 to file an Answer
  • $202 to file an Answer that includes a divorce

If you can’t afford to pay the court fees, you can ask the court for a "fee waiver". If you get a waiver, it means you don't have to pay most court fees. The Ontario government’s A Guide to Fee Waiver Requests tells you which court fees can be waived and how to ask for a fee waiver.