How to separate in Ontario – what you need to know
Decide whether you will remain in the house with your spouse or one of you will move out.
Speak with the children: if you have children, you and your spouse will need to speak with the children and break the news about the separation as gently as possible.
Decide what to do about your family’s finances. The chances are that you and your spouse had had an agreement on how to handle the family’s income when you got married. However, now that you are separating, you will need to discuss how to handle things from now on.
Learning that mom and dad are separating is terrible enough for the kids without them having to deal with disruptions in other areas of their lives. So try to keep their routines as stable as you can.
You will also need to ensure that you keep things as close to normal as possible.
Get a Certified Divorce Financial Analyst (CDFA) to help you navigate the murky waters of financial issues arising from the separation.
A Separation Agreement sets out your and your spouse’s rights regarding child support, parenting agreement, debt, asset division, and spousal support. A divorce ends the marriage.
Separating from your spouse is a big deal because when you were married or together under common law, your lives were intertwined in many different ways. As you take steps towards separating, you may need to make changes to several other areas of your life, such as career, lifestyle, and parenting agreement, to name a few. The following tips will help you understand what you need to do better.
No matter how easy it may look to an unaffected observer, getting a divorce can be a painful experience. Even if you find that you can’t continue in the marital relationship with your spouse, the decision to end things can be traumatic. After all, you did promise each other “forever”. However, when circumstances make it impossible for you to keep that promise, then you have to do the next right thing.
But what if you can’t face the decision to divorce your spouse? What if you see the idea of divorce as too final and a step you are not sure you are ready to take? If this is you, then you may want to consider trying separation for some time. Fortunately, one of the grounds of getting a divorce in Ontario is living separately and apart from your spouse for one year or more.
Another interesting thing about separation is that neither you nor your spouse needs to move away from home if you don’t want to. You can be under the same roof and still be living separately and apart. However, you and your spouse must live as though you are no longer married before the courts consider you legally separated. In light of this, you must have stopped the following:
- Communicating with each other
- Eating together
- All forms of sexual relations
- Participating in the same events and activities as a couple
- Sharing assets and finances as a couple
- Handling household responsibilities together as a couple
This article shares further insights on how to separate in Ontario, including the several legal issues that will crop up when you and your spouse decide to separate. You will also learn how a settlement agreement can help you resolve these issues, thus avoiding severe conflicts between you and your ex later. For the best outcome in your legal separation, contact us at Divorce the Smartway today. We understand the emotional turbulence that comes with getting a divorce and are committed to helping you get your separation in a civil and mutually beneficial way.
What should you not do during separation?
Because of the pain and emotional upheaval that typically comes with a separation, it is understandable if you want to pay back your spouse for every moment of heartbreak you endured leading up to the separation. However, this will be a bad idea because not only will it make it more challenging to move past your divorce; it may also expose you to litigation and additional legal fees.
Thus, try not to do the following during separation:
- Become violent with your spouse or threatening them: as tempting as it may be to cause your spouse a world of hurt, don’t do it. Becoming threatening or violent will impact your rights during the divorce, especially with parenting arrangements. Additionally, your spouse may sue you for assault, causing you to need a criminal lawyer as well.
- Involving the children in the conflict: no matter how bad the situation gets between you and your spouse, it does not negate that they are still a parent to the children. Dragging them into the conflict or making them take sides will damage the children and their relationship with the both of you.
- Making sudden changes to your family’s financial situation: now is not the time to deplete joint back accounts and abuse joint credit accounts. If you do so, the courts will regard your actions as unconscionable and may punish you for them.
- Making significant decisions without speaking to your lawyer: your lawyer counsel you and let you know whether those decisions will benefit your case or not.
Who pays the bills when you separate?
Deciding who pays the bills during separation can be difficult, especially because you are supposed to be living separately and apart. Typically, the answer to this question is that the person paying the bills before the separation should keep paying the bills after the separation until you have an enforceable settlement agreement. Also, if you and your spouse had always split the bills, you should continue this until you have both agreed on the necessary changes.
How do I deal with a separation I don't want?
Dealing with separation when you are the one that wants it is emotionally challenging, but dealing with it when you don’t want it is much more traumatic. When dealing with a separation you don’t want, you may try for reconciliation. You can suggest you and your spouse go for counseling. Your lawyer will be able to provide you with information about marriage counseling or guidance facilities. These facilities will help you determine whether you and your spouse still have a chance of coming back together.
What rights do I have if I leave the matrimonial home?
The rights you have if you leave the matrimonial home depend on the way you left home. If you left after discussing with your spouse and you both agreed to the move, you may still have your rights to the marital home during the separation.
You will not lose your claim to the property or any personal property you leave the matrimonial home. However, just as you expected to have your privacy when you left home, your soon-to-be-ex also has the right to expect privacy while remaining there.
How to separate in Ontario FAQ
Will legal separation protect me financially?
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.
Can I date while legally separated?
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.
Can you just stay separated forever?
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.
What does legal separation cost?
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 settlement agreement will cost you some money. Professionals such as lawyers and divorce mediators can help you draft the agreement, although they may charge differently.
How to file for separation?
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 written agreement with the courts if you want, but that is not necessary.
Separation Vs. Divorce: Know the difference
Sometimes, spouses make hasty decisions concerning their marriages leading to either divorce or separation. If your marriage seems to be going through a rough patch, you can both take some time off to reevaluate your relationship. If you wish to stay apart but still want to be legally married, you can seek separation in court.
In terms of separation, the couples can decide to sign a settlement agreement terms that puts both parties apart. They will start living separately while the court gives the order of separation of their finances, marital assets & debts, child support, child custody, and spousal support. In terms of divorce, everything is shared and in some cases, one may be awarded the highest percent.
The difference between divorce vs. separation is that, in divorce, you are no longer legally married to each other and are free to get married to someone else. While in a legal separation, you are not able to remarry and must indicate your new status when filling forms.
Types of Separation
Some states recognize legal separation and the procedures and duration in these states differ. Let’s look at the three types of separation that are legally known to the world. They are:
Spouses can be having issues in their marriages and not choose to end it yet for good reasons. You can opt for a trial separation if you still want to stay married to each other. This type of separation is a voluntary one and does not require any court filings. However, if the trial separation is to go on for more than two months, spouses can decide to agree on the terms.
This includes the timeframe, handling of the finances, child support and custody, and other important items.
When partners are burned out on each other, constantly “setting each other off,” and acting out in destructive ways, Therapeutic Separation (TS) is recommended.
It is a set period of time during which you continue your work in therapy, remain a couple, but live apart. The “time away” is planned and intended to allow partners to relax and regroup so that they can focus and energise.
These become the Terms of Separation
- Financial management
- Sex and intimacy with each other or others during the time apart**
- Managing “family time” if desired during the Therapeutic Separation
- Concerns about privacy (who they tell, and what is permissible to say)
- Children’s care and visitation, as well as minimising the impact on children
- Setting boundaries for “heavy” discussions and date nights
- Pet care, parental duties, and household chores
It should be noted that in the most successful Therapeutic Separation, the couple remains monogamous. It is recommended no introduction of any dating, as it destabilizes the marriage. The goal Therapeutic Separation is to keep the energy IN the marriage.
Legal separation can mostly be filed directly in a court in some of the states. Starting with a written petition also known as a complaint, you can go to your local court and file for separation. This has the same process as divorce. The judge will either decide for the couples or they both will agree on marriage-related issues like child custody and support, alimony, and property division.
The court will provide the formal settlement agreement form after everything is resolved. If the agreement seems to be okay by the court, they will then issue the orders and declare the couples legally separated.
The Key Differences Between Separation Vs. Divorce
The difference between separation vs. divorce is that you remain married to your spouse in separation but your marriage is terminated/dissolved in divorce. There are some key differences between these two and they are:
The health care benefits, some certain tax credits and benefits, and other benefits are retained in legal separation but all of these maybe terminated in divorce.
Once in a legal separation, you are not allowed to remarry because you’re still legally married to each other. But in a divorce, you both are free to marry someone else.
Medical or financial decisions can still be made by both spouses and they will also be considered as next of kin. These decisions or next of kin are not recognized in divorce.
In a legal separation, the spouses are still responsible for each other’s debts/liabilities but in a divorce, the process is handle during the dissolution of marriage.
It is quite easier for a spouse in a legal separation to reconcile but this is impossible in divorce as it can not be undone unless the couples involve remarries, and seek legal reunification.
The legal rights to property benefits upon the death of one’s spouse in a legal separation are preserved. But all of these rights can be wiped out in a divorce.
Is it better to separate or divorce?
Marriage isn’t a bed of roses and every person has their breaking point. Except, on the grounds of infidelity, abuse, and so on, you can decide to work things out by living separately or ending the relationship and going for a divorce. Separation gives your kids some closure but divorce can seem devastating to them and this may affect their emotions.
Why get a legal separation instead of a divorce?
This is a matter of personal preferences. Some spouses’ religious or personal beliefs may forbid them from divorce and so they opt for a legal separation that may allow them to remain married but living separately. Legal separation still allows them some benefits while still married to each other.
They can still find time to resolve their issues while looking forward to what the future holds for them. The legal separation still has a good effect on your kids as you both remain married but a divorce can not be undone.
How does legal separation protect you?
In a legal separation, spouses can move on independently from their marriage without having to go through the divorce process. The legal separation allows spouses to provide health care benefits, social security benefits, tax benefits, and even pension benefits. If you want more information on how the legal separation can impact you, you can contact an experienced lawyer in the field.
The Similarities between Separation Vs. Divorce
There are similarities between separation and divorce. Both proceedings are given by the court. The court can decide the following:
- Child custody & visitation
- Child support
- Alimony (also called spousal support or separation maintenance. This can be distinguished from the effect of a divorce and can be achieved through “motion pending litigation”)
- Property division and debt
Every state has its laws regarding property division and debt. You must know what law guides your state on separation vs. divorce before opting for any. Understanding the difference between separation and divorce will give you an edge on any decision you choose to make concerning your relationship.
Not saying that legal separation or divorce is the best but if you find yourself having doubts about your marriage, you can take some time off to reevaluate your relationship. For more information about separation vs. divorce, you can contact us
There is no specific process that you have to go through to get legally separated from your spouse. All you need to start a separation in Ontario is a desire of either you or your spouse or both of you to live separate and apart from each other. It is not even necessary that both of you agree to the separation. However, you must note the date you started living separately and apart, as you will need it when dividing your property.
Apart from the legal issues that separation brings, you should be aware of other areas of concern when contemplating separation from your spouse. First, understand that separation from your spouse is only the first in a series of changes you will be making in your life. To this end, it behooves you to take the time to answer some important questions first before you go ahead with the separation.
Our family law mediators at Divorce the Smartway have creating Soft Landings for clients for over 11 years. As a result, we are familiar with the issues that typically crop a when couples consider separation and are adept at helping them resolve the issues amicably and in mutually beneficial ways. If you would like to discuss your separation, reach out to us today.
Are you having trouble reaching an agreement on your finances? Do you want to avoid going before the judge and asking for help? Consider working with a family mediator who can help you end your marriage in a way that is peaceful, cost-effective, and child-focused.
Would you like to learn more? Get in touch for a Get Acquainted Call to learn more about finding a separation agreement with a soft landing.
Articles that may interest You!
Have Any Questions?
Book a Call
Talk to Ken S. Maynard CDFA, a Soft Landing expert to come up with a strategy that works best for you and your family for free!
Ken S, Maynard CDFA
Next Step - Schedule a Get Acquainted Call
I help smart and successful couples, create separation agreements with clarity and soft landings for secure futures, in 4 meetings or less without all the lawyer created overwhelming conflicts, confusion and costs. You can work with me by video conference or with a DTSW associate at any of our 6 DTSW Greater Toronto mediation centers, including | Aurora | Barrie | North York | Vaughan | Mississauga | Scarborough.
Have a few questions - Tap here to Schedule a Get Acquainted Call