Ontario, there is a difference between separation and divorce. It is essential for you to understand these differences and what they mean. The Family Law Act in Ontario considers a legally married couple separated the moment they start living apart and there is no reasonable likelihood they will resume cohabitating in the future. That date, known as the “date of separation” establishes the date to be used for the valuation of family property. The Divorce Act, a federal statute, governs the process of obtaining a divorce.
If you and your spouse decide to separate and live apart, it is in both of your best interests to consult with your own family law lawyers. You may want to create a separation agreement to resolve all issues between you arising out of your marriage or relationship.
The agreement can address various concerns the couple may have in regards to:
- Spousal Support
- Custody of Minor Children
- Child Support
- Child Visitation
- Division of Matrimonial Property
- Disposition of the Matrimonial Home
It is important to keep in mind being separated is not the same as being divorced. Some couples do decide to separate, obtain a separation agreement and simply live apart without actually finalizing the divorce. The reason some couples separate but do not get divorced can be related to certain medical or financial reasons; or they simply choose not to complete the paperwork to finalize the issue.
They might have pension and retirement plans or private health coverage that would affect one person’s interest if they finalized the divorce. Some plans, for example, provide coverage for a married spouse in spite of separation, so long as they are “married”. The couple could also have concerns about how the divorce will affect their minor children, so they choose to remain married but live apart until the children are older. However, until the divorce is finalized, neither couple can get remarried since they are still legally married.
A divorce is the process required to legally end the marriage. This is governed by the Divorce Act. Once finalized, either person can then get legally remarried, if they so desire. In order for the Courts to recognize a divorce, the couple must demonstrate that they have lived apart for at least one year, or prove cruelty or adultery.
In addition, the Courts have a responsibility to ensure the divorcing couple has come to mutually acceptable and adequate divorce arrangements. If the Courts feel the agreement is inadequate or fails to address the best interests of the minor children, they can delay granting the divorce until the couple resolves any outstanding issues. For example, if child support is not being paid in accordance with the federal Child Support Guidelines, then the Court would demand an explanation.
In the event a couple cannot work out an adequate divorce agreement, then the Court will delay the processing of a divorce judgment and the parties may have to present legal arguments before the Court to finalize their arrangements in accordance with the Divorce Act. Furthermore, the Court must be satisfied that the parties have not reconciled and have no intention to do so.
Is My Separation (Divorce) Agreement Final?
The division of matrimonial property and disposition of the matrimonial home cannot be altered once finalized. However, the terms and conditions of a separation agreement or divorce judgment can be varied in regards to:
- Child Support
- Child Access and Visitation
- Child Custody
- Spousal Support
If it can be shown that there has been a change in circumstances since the signing of the original agreement or the processing of the divorce judgment, then changes can be requested.
It is not uncommon for there to be changes in incomes, changes in the needs of the children and other factors that require making modifications that benefit both parties. Under those circumstances, either an amendment to the agreement or a variation of the court order or divorce judgment is required.