A Fine Line: Rethinking Capacity to Separate Amid Cognitive Decline

Kristine Anderson of Fern Law is speaking on this issue at the OBA Legal Conference on February 4, 2026.

Late‑life separation is becoming increasingly common, but the law governing capacity to separate hasn’t kept pace with the realities of aging, cognitive decline, and family dynamics. Under current Ontario law, the threshold for deciding to separate is strikingly low: an individual must simply know with whom they wish to live. Yet this minimal test sits uneasily beside the significant financial and legal consequences separation can trigger, including spousal support, property equalization, and shifts in estate rights.

We are seeing more cases where a vulnerable spouse’s intention to separate may be influenced by cognitive impairment, delusional thinking, or subtle manipulation by adult children or caregivers. These situations echo concerns long recognized in estates law, where courts routinely scrutinize undue influence and suspicious circumstances. Family law, by contrast, has been slow to adopt similar safeguards.

A balanced path forward would preserve the right of adults with diminished cognition) to leave relationships, while introducing targeted protections when red flags arise. A preliminary inquiry, triggered by signs of vulnerability or inconsistent reasoning, could help distinguish authentic intention from influenced decision-making.

Protecting autonomy and shielding the vulnerable need not be mutually exclusive. The law can, and should, do both.