When a relationship ends, it is important to understand the legal distinctions between separation and divorce. While these terms are often used interchangeably, they have different legal implications in Ontario, and understanding the difference is important when planning your next steps.
What Is Separation?
Separation occurs when you decide to live “separate and apart” from your partner and there is no reasonable prospect of reconciliation. If a couple disagrees on what the date of separation is (often referred to in family law as the “valuation date”) you then consider the facts around your separation and if/ when you began doing any of the below factors. Please note that this is a non-exhaustive list.
- Stopped sharing a bedroom or bed
- Began telling friends and family you were separated
- Stopped being intimate
- Began preparing and eating meals separately
- Stopped attending social events as a couple
You can be separated even if you are still living under the same roof, as long as you are no longer living together as a couple as set out above.
Many legal consequences begin at separation, such as parenting arrangements, child and spousal support, and the division of property. If you have children, you will want to ensure a parenting agreement is in place setting out the parenting schedule, before either party moves out from the family home. A well-structured parenting plan can help minimize conflict and establish a predictable routine for your children. This agreement should outline decision-making responsibilities, parenting time, and dispute resolution methods.
Many couples choose to formalize their separation through a separation agreement, which outlines the terms of their separation and helps prevent future disputes. This applies to both married and common-law couples and both may benefit from a separation agreement, depending on their circumstances. Common-law partners should be aware that their rights regarding property division may differ from those of married couples. Consulting a lawyer can help you understand how these differences may impact your situation.
To prepare a separation agreement, you should speak with an Ontario Family Law Lawyer who can provide you guidance on next steps and ensure you meet the requirements for a valid agreement with sufficient financial disclosure and independent legal advice. Having independent legal representation for both parties helps ensure fairness and validity in the agreement, reducing the likelihood of future legal challenges.
What Is Divorce?
Divorce is the legal process that officially ends a marriage and allows the parties to remarry. To obtain a divorce, you must demonstrate that your marriage has broken down by establishing one of the following grounds:
- Separation for at least one year: This is the most common ground for divorce.
- Adultery: One spouse has committed adultery.
- Cruelty: One spouse has treated the other with physical or mental cruelty.
It is important to note that you cannot apply for a divorce until you have been separated for at least one year, unless you can prove adultery or cruelty. A court must be satisfied that reasonable support arrangements are in place for any children of the marriage before granting a divorce. This includes ensuring that child support obligations meet federal and provincial guidelines and that parenting plans serve the child’s best interests. Failure to address these issues can delay the divorce process.
For more information on divorce, you can read our previous blogpost entitled How Divorce Works in Ontario.
Why It Matters
Understanding the difference between separation and divorce is crucial for making informed decisions about your future. Separation allows you to live apart and plan for the parenting schedule, how decisions are made for any children of the relationship, support, and division of family property. Divorce, on the other hand, legally ends the marriage and allows for remarriage.
The date of separation and the date of divorce will also impact how long a party has to make a claim for equalization of Net Family Property under the Family Law Act. These factors should be taken into consideration when determining what your date of separation is and when is the best time to start an application for divorce.
If you are considering separation or divorce, it is advisable to consult with an experienced family law lawyer as early as possible. A lawyer can help you understand your rights and obligations, negotiate agreements, and guide you through the legal process efficiently, reducing unnecessary stress.
This blog post was written by Meghan Boyer, a member of the Family Law team. Meghan can be reached at 613-566-2055 or at meghan.boyer@mannlawyers.com.
