Separation arises when at least one person in a spousal relationship develops a settled intention to end the relationship.
Separation can occur between married spouses and unmarried (or “common law”) spouses. Divorce, on the other hand, is the legal termination of a civil marriage by way of a court order.
Separation only requires that one spouse knows for certain that the relationship is over and that there is no hope of reconciliation. The other spouse's agreement to or knowledge of the separation is unnecessary. If there is ultimately a dispute between spouses on the date of separation, the law in Ontario takes a fact-specific approach to determining whether, at a particular point in time, separation had occurred by looking at several contextual factors, such as:
- whether the spouses were still residing under the same roof;
- the way in which they represented their relationship to their family members, friends and community;
- their level of financial integration; and
- their pattern of behaviour towards each other inside and outside the home.
Several issues may arise between separated spouses following the breakdown of their relationship, including but not limited to:
- Who will make major decisions affecting the child(ren)?
- With whom will the child(ren) reside and according to what schedule?
- Is there financial support payable from one parent to the other for the child(ren)?
- Is there financial support payable from one spouse to the other spouse for the other's maintenance?
- How will property be divided between the spouses?
- Who gets to live in and/or keep the matrimonial home?
These issues can be addressed and agreed between separated spouses, either directly or through legal counsel. Where such agreement is not possible, court intervention may be necessary to resolve the outstanding issues.
Separation precedes divorce and is typically granted by the court after the outstanding parenting and financial issues arising from the separation have been resolved by agreement or court order. Canada has adopted a “no-fault” system of divorce, under which spouses may apply for a divorce order after having lived separate and apart for at least one (1) year. Although fault-based grounds of divorce are also available, the amount of evidence required to prove these grounds, and the related likelihood of litigation, often mean that pursuing a fault-based divorce will cost much more in terms of time and money than simply requesting a divorce under the one-year rule.
It is possible to request a divorce before resolving all the outstanding issues arising from a separation; however, the court will not grant it unless it is satisfied that neither spouse will be disadvantaged by the divorce order and that reasonable arrangements have been made for the financial support of any children of the marriage. Because divorce can impact, among other things, a spouse's entitlement to possess the matrimonial home, their ongoing coverage under the other spouse's extended benefits plan, and their entitlement to benefits under the other spouse's pension, Ontario courts are careful to avoid prematurely issuing such orders.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
