Guiding Families Through Legal Challenges

Either party can choose to separate at any time; mutual consent is not required. Be aware, however, that the date of separation can be very important with respect to division of assets and agreeing to the exact date of separation might be problematic if there have been multiple attempts to reconcile.. If you and your spouse are able to agree on the separation date, then it may make it easier to negotiate a separation agreement. A written separation agreement is a private contract, which may address matters such as property division, child custody and support payments, and it is necessary to resolve these issues before a court will grant a divorce. Having said that, many couples live separate and apart for years, but never actually divorce until many years later or until one party wishes to remarry.

You and your spouse may decide how to divide your property via private negotiations, either on your own or with the help of lawyers, which you should then incorporate into a written contract, also known as a Separation Agreement. If you are not able to agree as to how to divide your property, a Court may decide for you. Typically, assets accumulated during marriage are to be equally divided between spouses, as are any debts incurred using a process called equalization. However, marriage contracts, cohabitation agreements and/or separation agreements have the potential to set out a different division of family property than what the law provides.

In recent years, Canadian law has shifted to prioritize shared parenting in determining custody arrangements. In other words, the Courts thinks that both parents are thought to hold an equal right and responsibility to be involved in the upbringing of their children. During a custody dispute, the Court will make a determination as to custody based on the “best interest of the child” by examining factors such as the child's physical, psychological and emotional needs, including the need for stability; the child's care history; the child's cultural, linguistic, religious and spiritual upbringing and heritage; the child's opinions and preferences (if the child is old enough); etc. After assessing various factors, including the child’s bond with each parent and the ability of each parent to care for the child, the court may award sole custody, joint or shared custody, or split custody.

No, you are not obligated to divorce if you are separated. The separation of two spouses simply means that the two spouses are living “separate and apart” whether that is under the same roof or in separate homes, but there is no requirement that you be “legally “ separated. A divorce indicates that you have legally ended your marriage and you are required to divorce before you may re-marry.

Each separation and/or divorce is unique and will not follow the same path, some may negotiate a Separation Agreement dealing with some or all of the issues, others will mediate/arbitrate and some will let the Courts deal with all issues including the divorce. Regardless of which route you take, you will be required to apply to the Courts to legally end your marriage and grant a divorce. In order to start a divorce proceeding you will have to fill out an Application which you will have to serve on your spouse (if it is not a joint Divorce) and then file with the appropriate Court. In the event that there are other outstanding issues between you and your spouse such as custody, support, pension splitting, etc. you will have the opportunity to raise those issues in your Application and alter the Court that you are asking for more than just a Divorce.