About separation in Canada...
There are two common myths about divorce in
there is no such thing as 'filing for legal separation' - you are
legally separated when you and your spouse are 'living separate and
apart' (see below). Secondly, there is no such thing as being
automatically divorced after so many years of separation - even if you
are separated for 50 years, you are still legally married.
There are only three grounds for divorce in Canada:
1. living 'separate and apart'* for more than one year;
2. adultery (cheating); and
3. mental or physical cruelty.
*'Living separate and apart' does not necessarily require 'physical separation' - you can be 'living
separate and apart' but share your home for economic reasons, or
children, etc. If you are filing for divorce based on separation, you
can make the first filing before you have been separated for one year,
however the second filing cannot be made until on or after the one year
anniversary of 'living separate and apart'.
For a divorce in Ontario based on
separation, you can file your divorce after your separation begins - however, the divorce cannot be
finalized until you have been separated for a full year.
It is always better if the two of
you can agree on how to settle the issues between you. Court proceedings
can be very expensive and take a long time. Signing a separation
agreement is a very important step. Your decisions now can affect you
and your children for the rest of your lives. A separation agreement is
a contract that you must honour.
The law leaves the decision about
having a separation agreement to you. You may have a hard time proving
that you and your spouse had promised to settle things a certain way if
you do not have a written, signed and witnessed separation agreement.
This could be a problem if your spouse stops respecting your informal
are very important issues that you should set out in a written and
witnessed agreement if you want to file a simple divorce (uncontested or
Issues related to your children:
Who will they live with?
Who will have 'custody' (major decision making powers)
If the children live with one parent, what are the other parent's
rights to access?
How much child support will be paid?
When will child support end?
related to spousal support:
Will one spouse pay support to the other?
When will support end?
If there is no support, is it waived forever?
Issues related to your property:
Who gets what?
If you have a house:
Ø Will you sell
Ø Who is
responsible for it until it is sold?
Ø How will the
proceeds be divided?
Ø What happens if
you can not agree on the terms of sale?
Issues related to your debts:
Do you have outstanding debts (credit cards, loans, mortgage)?
Who will be responsible for which debts?
What about debts incurred after separation but before divorce?
Issues related to pensions, RRSPs, RESPs, etc:
Will you split your pensions and/or RRSPs?
If you have RESPs, who will be entitled to permitted transfers?
DRAFTING YOUR SEPARATION AGREEMENT
you should have lawyers draft your separation agreement. If both spouses
work with one lawyer to draft the separation agreement, once it is
finalized, one of you should take the separation agreement to a separate
lawyer for independent legal advice. If there are issues that you are
having a hard time coming to an agreement about, you should consider
using a mediator. A mediator can help you come to an agreement on all of
the issues and even draft the separation agreement for you. He or she
would then direct each of you to get independent legal advice prior to
executing the agreement. Another alternative is to have a service like
for you that you then take to your own lawyers for independent legal
advice. Of course, you can always decide to draft your own agreement.
However, check your provincial requirements to have your separation
agreement enforceable by the courts. (In Ontario, your must have a
witness sign when you and your wife execute the separation agreement.)