Marriage Separation in Canada
Are you considering separating from your spouse?
If so, below are some important facts and information regarding separations in Canada. We will clarify a few common misconceptions about separations and then help you to understand exactly what a Separation Agreement is and what it needs to cover.
First, there really is no such thing as filing for ‘legal separation’ in Canada. You are legally separated as soon as you and your spouse are ‘living separate and apart’. However, the term ‘legal separation’ is commonly used to describe the contract that is created between two spouses at the time of their separation.
Second, there is no time limit to being separated, and a divorce will never automatically occur after or because of a separation. In fact, you can remain indefinitely separated from your spouse without ever filing for divorce. The only legal reason to obtain a divorce is if one partner wishes to remarry.
In order to file for divorce in Canada you must first complete a full one year separation period. The only exception to this rule is if your divorce is filed under the grounds of adultery or cruelty. There are three acceptable grounds for divorce in Canada and each of these are outlined in the federal Divorce Act and explained in detail on our Divorce page.
One Year Separation Period
As noted above, there are no time limits to a separation in Canada. However, if you are using separation as grounds for your divorce, then you must be separated from your spouse for a minimum of one full year. You can begin the application process for divorce the day that you are separate, but the courts will not grant you your divorce until the full year has passed.
If during this one year separation period you and your spouse get back together, this reconciliation will not affect your one year separation period unless you are back together for a period, or multiple periods, equaling more than 90 days. The purpose of this law is to allow couples a chance to try and work on repairing their marriage, without delaying a divorce in the event that their attempts are not successful. If you do indeed reconcile for a period of or exceeding 90 days and then separate again, you will be required to begin a new full one year separation period before a divorce can be granted.
Lastly, being separated from your spouse does not always mean that you must be living at separate addresses. Being separated means that you and your spouse must be living separate lives. From the courts perspective living at separate address is the easiest way to prove this. In the event that separate addresses are not possible (due to finances, children, etc.) you may reside at the same address as your spouse, and still be separated. In this type of situation the court will require that the couple prove that while they were dwelling at the same address they no longer lived as a couple. This can be complicated and usually requires legal representation.
What is a Separation Agreement?
A separation agreement is a legally binding contract created between two spouses, at the time of their separation. This contract sets out each party’s rights on issues such as: child custody/access, property, debts and child/spousal support. The law leaves the decision about having a written separation agreement up to each individual couple. However, it is always strongly recommended as it can be very hard to prove any verbal agreements made by a couple, in a court of law.
Ideally, it is best to have a separation agreement drafted by a lawyer. It is not a rule that a separation agreement must be drafted by a lawyer, and couples are entitled to draft their own agreements. Should you choose to create your own separation agreement it is important to check all your provincial requirements so that you know how to successfully write an agreement which will be binding and enforceable by the courts. It can be very difficult and costly to fight for unclear written agreements in court, should one spouse stop respecting the terms of your arrangement.
Drafting your Separation Agreement
There are many issues that need to be considered when creating a separation agreement. Separation agreements are treated seriously by the courts and any terms that are clearly unreasonable will not be accepted. It is important to note that judges will not usually change any property divisions or spousal support terms agreed to in writing, even if it is something they wouldn’t have set themselves. Due to this, it is important that you are fully educated about all your legal rights and are completely comfortable and confident before signing a separation agreement.
In the event that you and your spouse cannot agree on some or all of the items in a separation agreement, you can contact a mediator or retain separate lawyers in order to help you resolve your differences.
Important items needed in a Canadian separation agreement:
- Full Legal name of each spouse
- Date of separation
- Issues surrounding Children:
- Who will they live with?
- Who will have custody?
- Who will have access, and how will access be determined?
- How much child support will be paid?
- When will child support end?
- Spousal support:
- Will spousal support be paid. If so, how much, when and for how long?
- If spousal support is waived, is it waived forever?
- Property division:
- A clear list dividing who is to get which items and when.
- If you own a house you need to outline:
- Will be sold?
- Who is responsible for it until it is sold?
- Who will live in it until it is sold?
- How proceeds from the sale will be divided?
- Who will be responsible for which debts?
- How debts incurred after separation, but before divorce will be handled.
- Pensions, RRSPs, RESPs, etc:
- Will you split your pensions and/or RRSPs?
- If you have RESPs, who will be entitled to permitted transfers?
Signing a separation agreement is a very important step. It is important to remember that the decisions that you make in this document will affect you, and your children’s lives and future. A separation agreement is a binding contract that you must honour and quite often it is used as the basis for your actual divorce. It is always best to have your separation agreement created by a lawyer, or at least reviewed by one before it is signed. Always ensure you carefully consider everything on the separation agreement before agreeing to it, and then signing.
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