Important Aspects of a Separation Agreement Process in Ontario

The process of obtaining a legal separation in Ontario is one that evolves over what is usually the course of several months. The actual date of separation plays greats importance for married couples. This date is as the date on which the valuation of any property that needs to be divided between the spouses is created.

Parties are required to have been separated for a period of one full year before they are able to apply for divorce unless certain criteria are met. If the divorce is being applied for on the grounds of cruelty or adultery, then this period of one year does not apply.

Any issues that occur surrounding a separation should be addressed as soon as they are identified. These might be issues on spousal support, child support, or division of assets, issues regarding how the marital home is to be dealt with, or which spouse will be awarded custody of any children. Also under discussion can be how decisions that relate to the children will be made and who will be able to spend time with the children and when; known as an access schedule. This is why it would be a good idea to consult the services of a separation lawyer in Ontario. Read on to find out more.

What Constitutes Separation?

A separation is defined as the intention from spouse to live apart and separate from the other one. This does not actually necessitate one spouse moving out and living in a different property it is possible to live “separate and apart” whilst remaining under the same roof.

In order to identify whether spouses are living “separate and apart” or not a court will look at such factors a:

  • Do they share a bedroom?
  • Do they have sexual relations?
  • Do they prepare and eat meals together?
  • Do they attend social events as a couple?
  • Do they share chores?
  • Do they continue to talk to each other about and fit in around one another’s schedules?

The Divorce Act encourages those couples who want to attempt a reconciliation by allowing for them to resume cohabitation with the express desire to reconcile. This does not terminate or interrupt the one-year separation period, as long as the period of cohabitation is no longer than 90 days.

Why Should I Have a Separation Agreement?

A Separation Agreement, which might also be referred to as a Marital Separation Agreement, is an official document that you and your spouse to  come to an agreement about the terms of your living apart as well as the following:

  • Issues relating to any children you have together – child maintenance, child health insurance, visitation and custody rights
  • Spousal maintenance
  • Division of any shared assets, including the marital home
  • What items each spouse is entitled to
  • Which spouse is responsible for which debts

There are two different types of Separation Agreement in Ontario, temporary and permanent. A temporary one is one that is valid for the period until a couple gets a divorce. When this happens, a new separation agreement will need to be put in place. A permanent separation agreement is one that is still valid even in the event that a divorce has taken place.

A separation agreement offers both parties a degree of control over what will be received by each party when it is agreed that you will separate. It offers both parties the opportunity to out the decisions in writing so that there are no misunderstandings about what has been decided. When it comes to a divorce, it is likely that a court will take the contents of this separation agreement into consideration. Most courts will recognize the terms of a separation agreement provided that the terms of the agreement are fair to both parties and reasonable. Having a separation agreement can help you to resolve issues as an alternative to going to court which can be costly in terms of litigation fees.

When is it Beneficial to Separate?

Often spouses who are going through the separation process continue to live together. This is not uncommon. Some of the things that can make it difficult for either party to move out are childcare requirements, housing needs or simple financial realities. Until the issues that can surround a separation have been negotiated, it is not recommended for either spouse to move out.

The status quo is given up by the spouse who moves out, and this can make it much harder for them when it comes to certain claims -in particular, those pertaining to exclusive possession of the marital home or in the case of children, custody.

It is also important to remember that is one spouse is awarded support then this can be retroactively backdated to the date on which the separation took place. In the case of the spouse who has moved out being the one who will be required to pay support, and who has not been paying support during this period of separation then they may be required to pay retroactive support for this period.

Why Not Just Get a Divorce?

When a couple have been separated for a full year, then both spouses, or just the one, is able to apply for a divorce. However, if the marriage has produced children, then the courts will only grant a divorce if they are fully satisfied that in respect of child support reasonable arrangements have been made. This will usually mean that the payor is paying the appropriate amount of child support, the table amount, that is clearly defined in the Child Support Guidelines.

For many couples, staying separated for years is as far as they take things. Often, the only reason that they choose to go through the full formal process or divorcing their spouse is that one of them, or both, are seeking to remarry.

If you have questions about the separation process in Ontario, then contact a lawyer who specializes in separation and divorce who will be able to help you. A separation lawyer in Ontario will be able to make the process much less stressful, and ensure you have all bases covered.