Disclaimer: This article aims to provide educational information surrounding divorce and separation. It is not intended to serve as legal advice. Consult with a lawyer and exercise your discretion before taking action based on the information provided in the blog.

In our practice, we receive many questions about divorce and separation. What is a legal separation? When can I file for divorce? Am I separated or divorced?  

This article will outline the difference between divorce and separation and answer some other common questions. 

If you are considering getting a divorce, you must have clear legal advice. Contact our family law firm today.

What is separation? Do I need to file for separation? 

Once one of you decides to end the relationship and takes corresponding actions, you’re considered separated. You might have encountered the term “legally separated,” suggesting it’s a distinct category. However, in reality, you are legally separated as soon as one spouse has decided to end the relationship and have made it known to the other spouse, and you’re living separate and apart.

Separating from your spouse does not require formal paperwork. It’s important to note that separation doesn’t necessitate mutual agreement; one spouse can initiate separation without the other’s consent. 

A separation is sufficient for common-law couples. However, if you’re legally married, you may want to pursue a divorce. 

While you do not need to file for separation, it is wise to document the division of your property and any parenting arrangements in a separation agreement.

What does “separate and apart” really mean?

It’s a common misconception that a married couple must live in separate homes to be considered separated in court. However, the reality is different. Separation hinges on one spouse’s intention to live apart, regardless of living arrangements. This means you could still be separated even if you reside under the same roof—and in today’s housing market, that may be the most practical.

How do you know if you are living separately and apart? Factors the courts will look at include:

• how the spouses present themselves to the community,
• sharing a bedroom, 
• engaging in sexual relations,
• preparing and eating meals together,
• attending social events as a couple, and
• maintaining communication and accommodation of each other’s schedules.

The exact date of separation is incredibly significant in many respects. It impacts your divorce proceedings, property division, and potential retroactive support.

For instance, a court will grant a divorce on the grounds of separation but you must have been separated for at least one year, with the date of separation marking the beginning of this one-year period. 

Additionally, any property acquired after the date of separation typically isn’t subject to division between spouses, except for jointly owned assets. Additionally, retroactive child support or spousal support obligations may be affected by the date of separation.

Do I need a separation agreement to be legally separated? 

The law in Ontario does not require a separation agreement, but we recommend that you have one drafted. 

Whether you are married or common law, there are many issues surrounding separation. These can include property division, parenting time and decision-making responsibility for your children, and more. Having an agreement that outlines your rights and obligations will ensure clarity down the road. 

In many instances, if you are selling a matrimonial home or jointly owned residence, your real estate lawyer will require a separation agreement.  You may also need it to obtain a new mortgage, as the bank will want to know the details of your support obligation. 

However, you do not need to create a separation agreement to proceed with a separation in Ontario.

Do I need a divorce? Can my spouse and I remain separated? 

You can remain separated from your spouse indefinitely. Unlike divorce, separation only ends the relationship, not the marriage. 

However, there are three reasons that couples will typically apply for a divorce: 

• to be able to remarry 
• to have closure at the end of the relationship 
• to not be a spouse for the purpose of estate law matters.

What are the grounds for divorce in Ontario?

To obtain a divorce order, you must show that your marriage has ended in one of three ways:

• you and your spouse are separated and have lived apart for at least one year; 
• your spouse has been physically or mentally cruel to you or
• your spouse has committed adultery.

The divorce process can be relatively simple. If necessary, one or both spouses will file a divorce application and serve the application on the other spouse. If both spouses agree to the divorce and the terms outlined in the application, the process can proceed more smoothly through an uncontested divorce.

However, suppose there are disagreements regarding the terms of the divorce, such as child custody, support, or division of property. In that case, the process may become more complex and may require court intervention. In such cases, mediation or negotiation may be attempted to resolve, but if an agreement cannot be reached, the court will decide based on the evidence presented.

Once all issues are resolved through agreement or court decision, a divorce judgment will be issued, officially terminating the marriage.

What are the differences between separation and divorce? 

Let’s summarize the differences between separation and divorce in Canada. 

Plat Simionati LLP: Clear legal advice for all your family law needs 

At Plat Simionati LLP, our team of experienced family law professionals understands the complexities and emotional challenges of navigating the separation and divorce process. Whether you’re considering ending a common-law relationship or seeking legal guidance on applying for divorce, we’re here to provide clear and concise advice tailored to your unique situation.

Certain factors, such as property division, child custody, and support arrangements, must be carefully considered when deciding on separation or divorce. Our family law lawyers are dedicated to protecting your interests and reaching fair and equitable agreements.

We understand that many families, especially those with children involved, would like to come to an agreement as amicably as possible. That is why we are happy to offer mediation and collaborative family law services. 

At Plat Simionati LLP, we’re here to support you through this challenging time and help you move forward with confidence. Reach out to our team today!