How do I get a 'legal separation'?Why is the date of separation important?When am I entitled to a divorce? How do I get divorced?What if my spouse and I agree on everything?What information do I need to provide? What if my spouse and I can't agree?I'm separated. Should I wait until I am divorced to change my Will?What is a common-law spouse?Do I have property rights as a common-law spouse?How do I get a 'legal separation'?
Often clients ask about a legal separation. Separation is kind of like being pregnant: you are, or you aren't. While there is no such term as legal separation, spouses will be considered separated for legal purposes upon their separating with no reasonable possibility of reconciliation. Under the Divorce Act, spouses may attempt to reconcile for a period up to 90 days without it affecting their date of separation for the purpose of divorce. However, this 90 day grace period does not apply to property division under the Family Law Act.
It is possible for spouses to be separated while continuing to reside in the same home and a physical separation is not required. Also, it only requires the intention of one spouse to effect a separation; mutual consent is not necessary.
Where there is a dispute about the date spouses separated (usually while they continue to reside in the same home) consideration is given to such indications as: whether the spouses continued to represent themselves as a couple to the public and family, did they have meals together, perform services for each other such as laundry and cleaning, or did they go out together.
BACK TO TOPWhy is the date of separation important?
There are two main reasons why it is important to establish the dates the spouses separated with no reasonable possibility of reconciliation. Firstly, to determine when spouses have been separated for one year for the purpose of obtaining a divorce. Secondly, and perhaps more important to many clients, for the purpose of dividing the net assets acquired during marriage.
BACK TO TOPWhen am I entitled to a divorce?
To be eligible for a divorce, there must have been a breakdown in the marriage established by:
- Separation for one year;
- Adultery. However, you cannot rely on your own adultery to obtain a divorce on this basis; or
- Intolerable cruelty.
If you are claiming a divorce on the basis of adultery or cruelty, you will be required to prove the allegation.
BACK TO TOPHow do I get divorced?
In order to obtain a divorce, a court Application must be commenced. It can be as simple as claiming a divorce only, in which case both spouses can file a joint Application. This process may take 60-90 days.
You also have the option of asking for a divorce and other relief, such as custody, access, support and property division. This process will take much longer as usually the other relief will need to be dealt with beforehand.
In any event, prior to granting a divorce, the court has an obligation to ensure that proper child support is in place in accordance with the Federal Child Support Guidelines.
BACK TO TOPWhat if my spouse and I agree on everything?
Whether you are married or common-law spouses, the best resolution is always the one spouses can agree on. Separated spouses should be congratulated on being able to work together in difficult and emotional circumstances to focus on an outcome that works for their specific family needs.
It is important that any agreement between spouses be an informed agreement, having reference to what the law provides and where the agreement may differ. This may include reference to the relevant Child Support Guidelines, Spousal Support Advisory Guidelines, and completing a Net Family Property calculation in the case of married spouses. In order to give effect to your agreement, each spouse should obtain independent legal advice and provide full financial disclosure.
BACK TO TOPWhat information do I need to provide?
Support: You will be required to prove your income if there is a claim against you for child support. You must provide your past 3 years Income Tax Returns, Notices of Assessment, and a recent pay stub (if applicable).
In the case of self employed persons, or those who own a company, the income declared in your personal Income Tax Returns will not usually be determinative of your income for support purposes. Therefore, additional disclosure will be required, which may reasonably include:
- Your past 3 years bank and credit card statements, for both your personal and business accounts;
- Your past 3 years financial statements and corporate Income Tax Returns; and
- Applications for credit made by you.
In complicated matters, a valuation of your income by a certified business valuator may be required. If there is a claim for spousal support or a proportionate contribution to children's special or extraordinary expenses, this financial disclosure obligation will be mutual.
Each party should complete a Financial Statement.
Property: In the case of married spouses, the Family Law Act allows for a division of the net assets acquired during marriage, less certain deductions and exclusions. Each spouse must prove the value of any assets or liabilities owned by them as of the date of marriage and separation. This can be done in the form of bank, investment, and credit statements. Most pensions will need to be valued by an actuary, along with professional appraisals for items such as businesses and unique items. Any assets disposed of in the two years prior to separation must also be disclosed.
BACK TO TOP What if my spouse and I can't agree?
There are a range of options available to spouses trying to resolve the issues arising from their relationship and subsequent separation. At Brown Law Firm we explore which option best suits the needs to the specific family, in the manner that promotes a reasonable, timely and cost effective outcome.
Whichever option you choose, Brown Law Firm will continually assess, and reassess, which process is right for you.
The "Kitchen Table" Conversation: It is important to start a dialogue between separated spouses where possible. To the extent there are no safety concerns or power imbalances in a relationship, at Brown Law Firm we encourage spouses to try and have a conversation about the issues that are important to them. It can be as simple as having a coffee together. It may take several meetings to come to some understanding.
Mediation: Where spouses are able to communicate but may need some assistance, a mediator can help to facilitate discussions. This will usually take several sessions and where an agreement is reached in principle it will result in a Memorandum of Understanding.
Lawyer Assisted Negotiation/Separation Agreement: Spouses will consult with a family law lawyer who can advise on their rights and obligations in context. If spouses have been through Mediation, they will provide the Memorandum of Understanding to their family law lawyer to be included in a Separation Agreement.
If you do not have an agreement, their family law lawyer will assist you in generating options to suit your particular needs, and negotiating a fair settlement with the other spouse. This may include several settlement meetings.
Collaborative Practice/Collaborative Law: Collaborative Practice is a new approach to resolving family law matters, in response to growing dissatisfaction with the adversarial manner in which family cases are traditionally conducted. It arrived in Toronto in 2000 and has been steadily gaining the support of lawyers and clients alike with its emphasis on principled, dignified and respectful approach to resolving family law matters in a constructive and often creative manner.
Collaborative practice is a client driven process in which the parties avoid taking adversarial positions that often interfere with settlement. The parties undertake not to proceed to court with their respective lawyers. The parties also have the benefit of involving other professionals, such as divorce coaches, social workers and financial planners who are also trained in this practice. Without lengthy waits for hearings or trial dates, issues are resolved sooner and often less expensively. Sessions are held in private, so details are out of the public record. The parties have more flexibility in the outcomes available to them.
Not all family law lawyers are qualified to practice collaborative law. Lawyers and other professionals are given specific training in principled negotiation and effective communication skills. Valerie L. Brown is available to represent you in your collaborative law matter.
Mediation/Arbitration: This is a private dispute resolution method available to spouses. In the initial stages, efforts are made for the spouses to come to an agreement with a neutral third party mediator. If the spouses are unable to come to an agreement, and if they have signed an arbitration agreement in which they agree that the decision of the arbitrator will be binding on them, the arbitrator may make a decision after hearing submissions from the spouses. This is also a private method of resolution.
Court Application: This involves making a formal claim for relief in an Application. This is often a lengthy process which involves the following basic steps, some of which may be repeated:
First Appearance (can be avoided if there are property issues and Divorce);
Case Conference: the parties will attend before a judge who may make procedural order and who will otherwise offer a judicial opinion on the issues;
Settlement Conference: the parties will again attend before a judge for a judicial opinion. At this stage, all financial disclosure should be completed and Offers to Settle exchanged. The parties should have all the information necessary to make a final decision;
Trial Management Conference: the parties will set deadlines for the service and filing of documents in preparation for trial;
Pre-trial: this is a final opportunity to resolve the issues with the assistance of a judge before placing the decision in the hands of a judge at trial; and
Trial: the parties attend before a judge, make submissions based on the evidence and the law, and the judge makes a final order.
At any point after having a Case Conference on an issue, the parties may bring a motion for temporary relief, such as custody, access, support, exclusive possession, and sale of property. A motion may be brought before a case conference in cases of extreme urgency such as child abduction and financial hardship.
BACK TO TOPI'm separated. Should I wait until I am divorced to change my Will?
No. The Succession Law Reform Act makes provisions for changes to your Will in the event of marriage and divorce, but there is no such provision in the limbo state of separation.
In the event you marry, any Will previously made by you is deemed void (with the exception of a Will made in contemplation of that marriage). In the event you divorce, any gift to your spouse in your Will is also deemed void.
However, if you have left all or part of your estate to your spouse in a Will, unless you change your Will prior to your divorce, your spouse will still inherit.
If you have no Will in place, until you are divorced your spouse will be entitled to his or her preferential share (currently $200,000.00) along with ½ or 1/3rd of the remainder of your estate (depending on the number of children).
When estate planning, you should make provisions for any dependents, failing which your will may be challenged upon your death by a dependent's claim.
BACK TO TOPWhat is a common-law spouse?
Under the Family Law Act, you will be considered a spouse, commonly known as a common-law spouse, if you have cohabited in a conjugal relationship for three years or more or if you are in a relationship of some permanence and have a child together.
BACK TO TOPDo I have property rights as a common-law spouse?
Many people assume that since they are living with someone in a common-law relationship they have the same property rights as married spouses. This is not the case.
Married spouses have certain rights regarding the matrimonial home, regardless of ownership, including a right of possession. There is a further entitlement to a division of net family properties. No such rights accrue to common-law spouses.
However, depending on what contribution a spouse has made to property in the name of the other, there may be a claim to an interest in that property based on equitable principles. The contribution may be financial or labour based. Usually the contribution will be to the acquisition or increased value of property. It is the responsibility of the spouse claiming the interest to prove their contribution and its value. Further, the spouse claiming the interest will have to demonstrate they suffered some sort of loss as a result.
In order to avoid such issues in the event of separation, it is highly recommended the parties enter into a Cohabitation Agreement clarifying their rights upon separation.
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