About separation in Canada...

There are two common myths about divorce in Ontario, Canada: 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.

SEPARATION AGREEMENTS

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 agreement.

There 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 joint), including:

1. Date of separation
    

2. Issues related to your children:
   Ø Who will they live with?
   Ø Who will have 'custody' (major decision making powers)
   Ø If the children live with one parent, what are the other parent's rights to access?
   Ø How much child support will be paid?
   Ø When will child support end?
    

3.  Issues related to spousal support:
   Ø Will one spouse pay support to the other?
   Ø When will support end?
   Ø If there is no support, is it waived forever?
    

4. Issues related to your property:
   Ø Who gets what?
   Ø If you have a house:
        Ø Will you sell it?
        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?
    

5. Issues related to your debts:
   Ø Do you have outstanding debts (credit cards, loans, mortgage)?
   Ø Who will be responsible for which debts?
   Ø What about debts incurred after separation but before divorce?
    

6. Issues related to pensions, RRSPs, RESPs, etc:
   Ø Will you split your pensions and/or RRSPs?
   Ø If you have RESPs, who will be entitled to permitted transfers?

DRAFTING YOUR SEPARATION AGREEMENT

Ideally, 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 ezDivorce.ca draft a separation agreement 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.)