How to be Legally Separated – Legal Separation in Ontario

Legal separation is an option for separating spouses that, though are not willing to continue in their marital relationship, are not yet ready for a divorce. It is one of the options that the law provides for ending a marital relationship and can also be a prelude to a divorce. 

When spouses decide on a legal separation, they cease to live as a married couples and now live “separate and apart”. Although there is no legal procedure or court process required for a legal separation in Ontario, it may not always be a simple process. 

There are several legal issues that may need to be resolved before the couple actually separates, to avoid serious disputes later. Issues like responsibility for debts, marital property, child custody and parenting plans may need to be resolved through a legal separation agreement. 

If you and your spouse have decided that you would need some time apart, legal separation can be a good option. But to ensure that the separation occurs in a civil and mutually beneficial process, it makes sense to rely on professional help. 

A professional can help you and your spouse understand the disputes in your relationship and draft a legal separation agreement that reflects both your interests. This will be crucial to helping you decide what the next steps should be after separation. 

This article explains the legal rules that apply to legal separation Ontario and how these rules may affect you and your spouse. 

A legal separation occurs when a legally married couple, or one in a common-law relationship, decide to live “separate and apart”. Living separate and apart means that the spouses have: 

• Decided to end their marriage or common-law relationship; and 
• Started to behave in a way that shows they are looking to end the relationship

Legal separation does not automatically result in the end of a marital relationship though. It is an ongoing process that begins with a decision to live apart, although things may change should the spouses decide to do so.  

This is why legal separation is often taken as a temporary separation option for couples that are not ready for a divorce. They may want to explore the possibility of divorce by living separate and apart before taking a more permanent decision. 

There is no specific legal process that a couple must go through before they legally separate. In fact, either party can decide that they want a legal separation and that’s it. It is not necessary for both spouses to agree. 

Despite this however, there are certain legal implications to legal separation. First, legal separation is one of the grounds for a divorce. In Ontario, before a couple can seek a divorce, they must show reasons why they should be divorced by the court. One of these reasons is that they have lived separate and apart for at least one year. 

Second, the actual date on which a couple begins to live separate and apart will be important to determining if they have lived apart for up to one year. If they do certain things while being legally separated, the court may decide that they were not living separate and apart during the period under review. 

Third, to determine if a couple is actually legally separated, the court will look at certain factors, such as whether they: 

• Prepare and eat meals together
• Share chores
• Share a bedroom
• Continue to communicate about and accommodate each other’s schedules
• Have sexual relations
• Attend social events as a couple

If a couple does these things, it may be determined that they are not legally separated. While doing any of these things will not affect your decision to take time off your relationship, it may be material to your divorce process should you decide to proceed.

Although the two terms are often used to mean the same thing, there may be circumstances where they amount to entirely different things. 

In Ontario, a couple is legally separated when they decide to be legally separated, and begin to behave in that manner. This means that those factors the court will consider to determine if they are legally separated should be absent from their relationship. 

When a couple has been legally separated for up to a year, they may be eligible to file an application for a divorce. As such, legal separation has several legal implications for the couple. 

When a couple decides to stay apart but not in a manner that amounts to legal separation, then they are merely separated. During such a separation, the couple is still legally married and cannot argue or behave otherwise. 

Separation is not a prelude to divorce either. It only begins to count towards divorce when it becomes a legal separation. It is also important to state that neither separation nor legal separation ends a marriage. To do that, the parties must get a divorce. 

If you and your spouse are living apart without being legally separated, then you may merely be separated. This means that your period of living apart may not count towards an eventual divorce. 

Also, you would still have marital responsibilities towards your spouse during the period of living apart, if you are not legally separated. This can raise serious issues in the event of a divorce, especially if the decision to live apart was not mutual. 

There’s no straight answer to this question. Dating while legally separated may lead to complications if you choose to get a divorce. Your spouse could raise claims of adultery on that fact. 

However, if you and your spouse have agreed that you can see other people while legally separated, this may not be a problem. In either case, it will pay off to seek legal advice before you start seeing other people while legally separated. 

Definitely. Even though the law uses the term “separate and apart”, you can live separate and apart under the same roof. Many couples already do this to financially support housing and living costs and their childern. 

So long as you do not have sex with your spouse or do any of the things that would make a court determine there was no legal separation, you can live together. 

The Divorce Act also allows couples to resume cohabitation for the purposes of reconciliation without interrupting their legal separation. The cohabitation must not span more than 90 days though. 

At its most basic, legal separation does not cost you or your spouse anything. There is no legal process involved in deciding to legally separate. You and your spouse can do this on your own. 

However, drafting a legal separation agreement will cost you some money. Professionals such as lawyers and divorce mediators can help you draft the agreement, although they may charge differently.

What about filing for separation in Ontario? There is no need or requirement to file for separation, nor do you for apply for separation meaning there are no court forms to fill out, however you can file your separation agreement with the courts if you want, but that is not necessary.