Moving Out After Separation in Ontario Before a Separation Agreement is in Place
Article by Erin Burns
When a relationship ends, one of the first big questions is often: who stays in the family home? If you have separated from your spouse but do not yet have a Separation Agreement in place, you may be wondering whether you are able to leave the home, and whether you can take the children with you. Before taking action, it is important to consider the implications of leaving the family home with or without the children before an Agreement is in place.
Leaving the Family Home
In Ontario, married spouses who separate generally have an equal right to remain in the matrimonial home, regardless of whose name is on the title. This right is protected under the Family Law Act. However, there is no rule that says you must stay in the home. If you decide to move out, you are entitled to do so. Before making that decision, you should consider the
consequences of leaving the home.
Leaving the home does not mean you give up your property rights. You are still entitled to an equalization of net family property and, and you may still have a financial interest in the home. However, leaving the home voluntarily can sometimes affect negotiations or Court decisions, which is why it is a good idea to get legal advice before making this decision.
Moving Out With the Children
This is where things get more complicated. Before a Separation Agreement or Court Order is in place, there is no clear parenting schedule or determination of rights with respect to decisionmaking responsibility. If you move out of the home with the children without the other parent’s
consent, it can cause serious legal problems. The other parent may commence urgent Court proceedings to have the children returned to the home or an interim parenting schedule determined. Courts in Ontario focus on what is in the children’s best interests when making
determinations surrounding parenting time and decision-making responsibility, and unilateral actions may be viewed negatively by a Court and may affect future parenting arrangements.
What You Should Do
If you are considering leaving the family home, with or without your children, there are practical steps you should take:
- Consult a family lawyer before acting. Understanding your rights and risks in advance can prevent costly legal disputes down the road.
- Try to reach a temporary agreement with your spouse about parenting arrangements, even informally in writing, until a formal Separation Agreement or Court Order is in place.
- Do not relocate children out of the province without either the other parent’s written consent or a Court Order permitting you to do so.
- Document the status quo. Courts often give significant weight to established parenting patterns, so the arrangements in place during the early separation period can matter greatly.
The Bottom Line
Separation is stressful, and decisions made early on can have long term effects, especially when children are involved. It is important to seek legal advice early to protect your rights and support your children’s stability. If you would like to discuss these issues with a lawyer, please contact the Family Law team at Cohen Highley for assistance.
