Separation

When you end your relationship by separating, it can affect you in many ways. It’s stressful. You have many decisions to make, including legal and financial decisions.

Legal advice: You’ll need legal advice about your 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.

Personal support: You may also need:

• counselling on how to help yourself and your children deal with the breakup
• advice on safety planning
• help from a credit counsellor or financial planner.

Only you can answer that question. A temporary break can help couples deal with problems. Or, it may be the first step in ending a relationship. Counselling services can help couples talk about their problems and make decisions.

The law does not say that once you are married or in a long-term relationship, you must stay in it. The law does provide ways of dealing with issues when you separate.

Each of you should get advice from your own lawyer before making major decisions. This is the best way to ensure you understand your rights and responsibilities.

You do not need to file any paperwork with the court to be legally separated. You are considered separated once you no longer live together as a couple. You don’t need to do anything more to make it legal.

Eventually, you and your spouse will need to work out the terms of your separation, such as:

• parenting arrangements, including where your child will live, decision-making responsibility and parenting time
• child and spousal support
• how to divide property and debts.

You should both talk to different lawyers before you sign any separation agreement. This is called getting independent legal advice. Your lawyer will review it and should make sure you understand what it means and how it will affect you. They can explain your rights and responsibilities and may give an opinion on fairness.

It is very difficult to change once you agree to the terms of a separation agreement unless both of you support the change.

You can live in the same home and still be considered separated for legal purposes. However, couples usually no longer live in the same home when they separate.

Whether or not you and your spouse are considered separated if you still live in the home will depend on all the facts.

Sometimes a separated couple will still live in the same home but no longer share daily activities or each other’s lives. This can happen because of choice, childcare or money issues. They may sleep in separate rooms, eat meals apart, and not appear to the public and friends as a couple.

You have a right to take at least your personal belongings. Children going with you can take their personal belongings such as clothes and toys. You may also have a right to take some matrimonial property, such as household items, for your new home.

Each case is different. If possible, you should get legal advice before you leave the home. Your lawyer will advise on what you can take and what your share of the matrimonial property may be.

You must not give away, sell or destroy household items you take with you.

Some people write up the terms of their separation in an agreement, although it is not required by law. You can save time and money if you and your spouse can agree on the separation and write an agreement. Registering the agreement with the court means you can enforce it like a court order.

Reasons to write an agreement:

• The separation can be less stressful. If you can’t reach an agreement, you may have to go to court, which can be a challenging experience.
• Your rights and obligations are set out once the written agreement is signed. You do not have to wait for court dates and other delays.
• It can help you set your separation date 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.
• 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 the Canada Revenue Agency about spousal support payments and income tax.
• You can include the terms of the separation agreement in a divorce order.

You can make a separation agreement 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.

This agreement describes the terms of your separation.

Your lawyer will advise you on what terms best protect your interests and meet your needs.

Some things to include in a separation agreement:

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, how much and for how long

When discussing child support, you should keep in mind the Government of Canada’s Child Support Guidelines. They say how much child support to pay based on the number of children and the paying parent’s income.

Home 

• who will pay for the mortgage, repairs and insurance
• the family home will be sold
• how to share the profit
• who will live in the family home if you do not sell it.

Property and finances

• how to divide other family property such as pensions, investments, vehicles, furniture, and savings
• how to pay family debts
• who will pay for insurance policies, and who will be the beneficiary.

Agreement use and changes

• how will the agreement be changed if circumstances change
• if you are married, will the separation agreement form the terms of a divorce agreement

There is more information about what to include in our separation agreement pathway.

There are several options to help you work out a separation agreement without going to court. Sometimes these options are called family dispute resolution processes. Ways to solve issues outside of court include negotiation, mediation and collaborative family law.

Negotiation often involves the help of lawyers.

Collaborative family law is a process where lawyers and spouses agree not to go to court but instead to work together to reach an agreement. Your lawyer acts on your behalf, represents you and your needs and works to ensure that any agreement is in your and your children’s best interests. Your spouse has their own lawyer who works for them.

Mediation involves a mediator who is a trained person who doesn’t represent you or your spouse. They will work with both spouses to help reach an acceptable agreement. A mediator does not necessarily ensure the agreement complies with family law. So, before you sign anything, you should review the agreement with your lawyer.

You can find out about other ways to solve family law issues without court at nsfamilylaw.ca

No, there isn’t a specific court form or template that you can use. There isn’t a one-size-fits-all separation agreement, the agreement has to be specially tailored for your case. 

You may be able to find templates on the internet, but it is risky to use them. The only way to be certain that you are doing your agreement right is to have it done by a lawyer.

For those who cannot afford a lawyer, we have a self-guided separation agreement pathway. 

While you can write your own agreement, it is not wise to do so. A separation agreement affects your rights and responsibilities. You should get legal advice on those rights and responsibilities, discuss possible terms with your spouse, and then have your lawyer draw up a formal agreement.

For those who cannot afford a lawyer, we have a self-guided separation agreement pathway. 

You should not sign any document affecting your rights until you have spoken with your lawyer. They can make sure that the agreement covers all the necessary issues.

For your protection, you should put the terms into a written agreement. However, you and your spouse can verbally agree to the terms of your separation. If it is in writing, it will be easier to prove what you agreed on if there is a dispute.

And you should always talk to a lawyer before you sign any 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 binding contract and can be enforced through the courts. Before signing a separation agreement, you and your spouse should get independent legal advice.

You can go to court if your spouse does not follow your written agreement.

If approved, registering the agreement with the court means you can enforce it like a court order. Registering the agreement also means you can access the Maintenance Enforcement Program (MEP) for help collecting child and spousal support payments.

Visit the MEP website at mep.novascotia.ca/ for more information.

If you have only a spoken agreement, it will be much harder to make your spouse follow the terms of the agreement.

Yes. You change a separation agreement.

• Spoken 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 your spouse’s.
• Written agreement: It may allow for adjustments 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.

Remember 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
• the terms of the agreement are unduly harsh
• you did not have legal advice before you signed it
• 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, it may be changed based on the agreement’s terms or if there is a big change in the circumstances of one or both people.

If you and your spouse cannot agree, you will probably end up in Family Court. One of you will have to ask the courts to make a decision. Court is also an option when an issue must be dealt with right away. An example is family violence. In these cases, parenting decisions need to be made quickly. 

The Supreme Court Family Division hears family law cases. Court processes such as conciliation and settlement conferences led by a judge can help spouses reach an agreement without having a trial.

When necessary, a trial is an option. However, spouses are encouraged to work out their differences without a trial because it leads to more workable solutions, especially with children.

After you have been separated for more than 90 days you:

• should tell the Canada Revenue Agency (CRA). Here is how to change your family status with the CRA.
• may apply to have the child tax benefit assessed based on your new parenting and financial situation. See the child tax benefit website for more information.

Yes, depending on your situation. You should review the terms of your will, power of attorney, personal directive, life and health insurance, registered retirement savings plans (RRSPs), tax-free savings accounts (TFSAs) and other financial products where you’ve named your spouse as beneficiary or substitute decision-maker. A lawyer can advise on these matters.

The agreement can also include a statement that says you and your spouse agree not to harass or interfere with each other.

• 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:
  • Parenting Arrangements
  • Divorce and Family Violence
  • Child’s Views and Preferences
  • Moving after separation or divorce
  • Duties for parents and others
  • Family Dispute Resolution