Ending a relationship is never easy. Your emotional, physical, and mental state can be turned upside down. It's not as simple as just saying goodbye and going your separate ways.
You'll need legal information and advice about your legal rights and responsibilities, including:
- parenting arrangements if you have children
- making sure you and your children are safe if family violence is a concern
- child support
- spousal support
- dividing your property and dealing with family debts.
In addition to getting legal advice, you may need counselling on how to help yourself and your children deal with the break-up. You may need help with safety planning. You may need help from a credit counsellor and/or financial planner.
It can be overwhelming, but try to take it step-by-step, and get help from experts when you can.
I am not getting along with my spouse, should we separate?
Only you can answer that question. A temporary break can help couples deal with problems in a marriage or relationship or it may be the first step in ending the marriage or relationship that is not working out. There are counselling services that can help couples talk about their problems and come to a decision, or to come to terms with whatever decision you make.
The law does not say that once you are married or once you are in a long-term relationship you must "stick it out". The law does provide ways of dealing with issues that arise as a result of separation.
You do not need your spouse's permission to separate. Leaving or ending a relationship is a decision either you or your spouse may make on your own.
If you can you should get a lawyer's advice before making a decision, to help you understand your rights and responsibilities.
How do I get a 'legal' separation?
The term separation applies when one or both spouses or partners decide the relationship is over. Once you are no longer living together as a couple you are considered separated. No further steps are required to make it "legal". You do not need to file any paperwork with the court to be separated.
Eventually you and your spouse will need to work out the terms of your separation, such as a parenting arrangement (where your child will live, decision-making responsiblity, parenting time), child and spousal support, and division of property . Some people choose to write up the terms of their separation in a separation agreement, although the law does not say you have to do this. If you do get a separation agreement, some people choose to register the agreement with the court so that it can then be enforced like a court order.
Should I tell the government about our separation?
After you have been separated for more than 90 days, you should tell the Canada Revenue Agency (CRA). Here is information about changing your family status with the CRA: https://www.canada.ca/en/revenue-agency/services/child-family-benefits/update-your-marital-status-canada-revenue-agency.html
After you have been separated for more than 90 days you may apply to have the child tax benefit assessed based on your new parenting and financial circumstances. Please see the child tax benefit website for more information at canada.ca/en/revenue-agency/services/child-family-benefits/canada-child-benefit-overview.html
Must one of us leave the home before we are considered separated?
Usually when couples separate they no longer live in the same home. However, it is possible to live in the same home and still be considered separated for legal purposes. Sometimes a separated couple will still live in the same home but will no longer share daily activities together or share each others lives. For example, they may sleep in separate rooms, eat meals separately, and no longer appear to the public and friends as a couple. This can happen because of childcare or money issues. Whether or not you and your spouse are considered separated if you still live in the home will depend on all of the facts of your case.
If I leave the matrimonial home, can I take my things with me?
You have a right to take at least your personal belongings and, if the children are going with you, their personal belongings such as clothes and toys. You may also have a right to take some matrimonial property such as household items to allow you to set up your new home. Each case is different and, if possible, you should get legal advice on your situation before you leave the home. Your lawyer will advise you what you can take with you and what your share of the matrimonial property may be.
You must not give away, sell or destroy household items you take with you.
What if we cannot agree on the terms of separation?
If you cannot agree likely you will have to ask the courts to settle the matter. Court is an option for spouses who can't reach an agreement or when there is an issue that must be dealt with right away – such as when there has been family violence and parenting needs to be addressed, or when financial supports like child support and spousal support need to be put in place.
The Supreme Court Family Division hears family law cases throughout the province. There are court processes such as conciliation, and settlement conferences led by a judge to help spouses reach an agreement without having a trial.
Of course, when necessary a trial is still available but spouses are encouraged to work out their differences because it leads to more workable solutions for their family, especially when there are children.
Can we get help to reach an agreement on the terms of separation?
Your lawyer acts on your behalf and works to make sure that any agreement is in your best interests, and in the best interests of your children.
There are many options available to you to work out an agreement with your spouse after you separate, without court. Sometimes these options are called 'family dispute resolution processes'. Some ways to to solve family law issues without court are:
- negotiation, often with the help of lawyers
- mediation—A mediator is an independent person who will work with both spouses to help you reach an agreement you both can live with. A mediator does not make sure family law is followed. So, before you sign anything, you should take the agreement to your lawyer to make sure that your legal rights are protected and the terms and your legal responsibilities are explained to you.
- collaborative family law—lawyers and spouses agree not to go to court, and work together to reach an agreement.
You can find out about other ways to solve family law issues without court at nsfamilylaw.ca
What sorts of things should we put in the separation agreement?
A separation agreement usually describes the terms of your separation. Your lawyer will advise you on what terms will best protect your interests and meet your needs.
Following are some things to include in an agreement:
- the parenting arrangements for your children
- who will pay child support and contribute to special expenses such as childcare
- whether one spouse will pay spousal support, and if so, how much and for how long
- will the family home be sold - if not, who will live there?
- who will pay for the mortgage, the repairs, and insurance on the home;
- if the home is sold, how will the profit be divided;
- how will other family property be divided such as pensions, investments, vehicles, furniture, and savings;
- how will family debts be paid;
- who will pay for insurance policies and who will be the beneficiary;
- how will the agreement be changed if circumstances change;
- if you are married, will the separation agreement form the terms of a divorce agreement.
When you are discussing child support, you should keep in mind the child support guidelines. They provide a guide to the level of child support based on the number of children and the income of the paying parent. See the page on child support for more information.
The agreement can also include a term that says you and your spouse agree not to harass or interfere with each other.
The separation agreement does not have to be made as soon as you separate. It can be made at any time before a divorce. However, the sooner you can agree on the terms of the separation, the sooner you will be certain of your and your spouse's rights and responsibilities.
Must the agreement be in writing?
No. You and your spouse can verbally agree to the terms of your separation. However, for your protection you should put the terms into a written agreement. If it is not in writing, it may be harder to prove what you agreed should a dispute arise at a later date. Do not sign any agreement until you have talked with a lawyer.
Can I be forced to sign a separation agreement?
No. A separation agreement is only valid if both spouses voluntarily agree to the terms and sign the document. Once the agreement is signed, it is a legally binding contract and can be enforced through the courts. Before signing a separation agreement you and your spouse should have legal advice. You should not use the same lawyer.
Can an agreement be enforced?
Yes. However, enforcing an unwritten agreement can be difficult since often there is only your word against your spouse's about what you agreed to.
The usual way of enforcing terms of a written agreement is through the court. Registering the agreement with the court if approved, means it can be enforced like a court order.
Registering the agreement also means you have access to the Maintenance Enforcement Program MEP for help collecting child and spousal support. Visit the Nova Scotia Maintenance Enforcement Program website at mep.novascotia.ca/ for more information.
Is it a good idea to have a separation agreement?
If you and your spouse can agree to the terms of separation and can set them out in a written agreement, you can save time and money.
- The separation will take less of a toll on your emotions and on those of your children. Going to court to fight over child support, spousal support, parenting arrangements or property can be a stressful, drawn-out and unpleasant experience for any family.
- If you have a written separation agreement, your rights and obligations are set out as soon as the agreement is signed. You do not have to wait for court dates and other delays.
- If you later decide to divorce, you can include the terms of the separation agreement in the divorce order.
- If you are making support payments to your spouse under a written agreement, you may be able to claim them on your income tax form. You should talk with a lawyer, an accountant or Canada Revenue Agency about spousal support payments and income tax.
- It can be helpful for establishing dates of your separation for Canada Pension Plan credit splitting. However, administrators of employment pensions may require a court order and not just a separation agreement. You should check with your lawyer or with the pension-plan administrators.
Must a lawyer draw-up the agreement?
While you can draw up your own agreement, it is not wise to do so. A separation agreement is an important legal document that will affect your rights and responsibilities. You should get legal advice on those rights and responsibilities from a lawyer, discuss possible terms with your spouse, and then have your lawyer draw up a formal agreement.
You should not sign any document that may affect your rights until you have spoken with a lawyer. Your lawyer can make sure that the agreement covers all the necessary issues.
If you cannot agree on the terms of separation, a lawyer or mediator may be able to help you work it out. You and your spouse should not use the same lawyer.
Can the agreement be changed once it is signed?
Yes. It is possible to change an agreement.
- If you have a verbal agreement, you can change it by agreeing to the new terms. However, it is difficult to enforce a verbal agreement since it will only be your word against that of your spouse.
- If you have a written agreement, it may have a provision allowing for it to be adjusted to meet changing circumstances. Or, you and your spouse can agree to changes. The changes should be put in writing and witnessed. If the agreement is registered in the court, and you cannot agree on changes, you can apply to the court to settle the matter.
Keep in mind that once the agreement is signed it is a binding contract. Judges are reluctant to change agreements. The judge will have to be convinced that both spouses agree to the changes or that the terms of the agreement are unduly harsh and you did not have legal advice before you signed it or that you were forced into signing it.
Generally only terms of an agreement that relate to parenting or child support may be changed. If spousal support is paid then it may be changed based on the terms of the agreement or based on the general rule that there has been a big change in the circumstance for of one or both parties to the agreement.
Are there other matters to consider when we separate?
Yes, depending on your situation. You should review the terms of your will, power of attorney, personal directive, life and health insurance, RRSPs, TFSAs and other financial instruments where you've named your spouse as beneficiary or substitute decision-maker. A lawyer can advise you on these matters.
Other helpful resources:
- www.nsfamilylaw.ca- family law information on many topics, including common law relationships, divorce, separation, parenting arrangements, spousal support and child support
- Contact the Legal Information Society of Nova Scotia to connect with a legal information counsellor and get free legal information
- Contact Nova Scotia Legal Aid for family law legal information and legal advice
- Contact a lawyer in private practice (lawyer you would pay) who does family law
- Free and low-cost legal help in Nova Scotia.
- The Department of Justice Canada has more information about family law and the changes to the Divorce Act, including fact sheets on:
Last reviewed: June 2021
Reviewed for legal accuracy by: Lawyer Shelley Hounsell-Gray, QC
Thank you to Justice Canada for funding to help update our legal information on divorce.