Understanding Separation vs. Divorce: Make the Smart Choice

When a married couple in Canada decides to end their relationship, they have two options: separation or divorce. Both have their own pros and cons, and it’s crucial to understand these before deciding. This article will delve into the laws governing separation and divorce in Canada, discuss their advantages and disadvantages, explore the financial implications, and highlight the benefits of mediation and available support systems.

Understanding Separation and Divorce Laws in Canada

In Canada, separation and divorce are legal ways to end a relationship. While you don’t need a legal separation before filing for divorce, many couples opt for separation first to give themselves time to weigh their options. Both processes involve important decisions about child custody, asset division, and support.

Asset Division in Canada

Regarding dividing assets, Canadian law generally entitles both spouses to an equal share of the family property acquired during the marriage. This includes assets like the family home, vehicles, pensions, RRSPs, RESPs, etc. However, exceptions exist, such as prenuptial agreements or assets one spouse brought into the marriage.

Pros of Separation in Canada

Separation offers the chance for reconciliation and personal growth. It serves as a trial period, allowing couples to live separate lives and assess whether to proceed with a divorce. This period can also be a time for self-discovery, setting clear boundaries, and addressing unresolved issues in a less intense environment.

Cons of Separation in Canada

However, separation can be emotionally taxing, especially for children. It can also create financial uncertainty and complexities in property division. Consulting a divorce lawyer or mediator can help navigate these challenges.

Steps to Take When Considering Separation or Divorce

Navigating the complexities of separation and divorce can be challenging. This process can be even more daunting when you need clarification about the specific laws and regulations that apply in your jurisdiction. In this blog post, we’ll clarify the differences between separation and divorce within the context of Ontario law.

What is Separation?

Separation is when two individuals living together as a couple decide to live apart. This can occur within a marriage or a common-law relationship. It’s important to note that a legal document or court intervention is unnecessary to establish a separation in Ontario. The act of living separate lives, intending to separate, often suffices.

Legal Separation: What Does it Mean?

While there’s no such thing as “legal separation” in Ontario law, the term is commonly used to refer to situations where a couple has lived separately and has formalized certain aspects of their separation with a separation agreement. A separation agreement is a legally binding document that details arrangements about property division, spousal support, child custody, and other related issues.

The Divorce Process in Ontario

Divorce is a legal dissolution of a marriage, which the court must grant. In Ontario, you can file for divorce if you have been separated from your spouse for at least one year or if you can prove that your spouse committed adultery or treated you with physical or mental cruelty.

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:

Legal Status: After a divorce, your marriage has been legally ended, and both parties are free to remarry. In contrast, separation does not legally end a marriage. Therefore, even though you and your spouse live separately, you are still legally married.
Resolution of Matters: In a separation, property division, child custody, and spousal support can be negotiated and formalized in a separation agreement. In a divorce, a court can decide these issues, but parties can also negotiate and resolve these matters outside of court.
Religious and Personal Beliefs: Some people may choose separation over divorce due to religious beliefs or personal reasons. In such cases, a comprehensive separation agreement can protect each party’s rights and interests.
Financial Implications: The financial implications of separation and divorce can vary greatly depending on the couple’s circumstances. It’s essential to consult with a legal expert or financial advisor to understand the potential financial consequences of each.

Hot off the press: Statistics Canada new data

In line with Statistics Canada’s dedication to boosting Canadians’ statistical literacy and ensuring public access to this data, these new tables allow users to explore, utilize, and analyze a range of indicators associated with divorces. Statistics Canada just released a set of fresh data tables:

Steady decline of the divorce rate since 1991

Despite the growth in the population susceptible to divorce, namely married individuals, there has been a decline in the number of divorces over the past three decades. The divorce rate – the number of divorces per 1,000 married individuals – dropped from 12.7 per 1,000 in 1991 to 7.5 per 1,000 in 2019 and descended to 5.6 per 1,000 in 2020. Chart 1 illustrates a consistent decrease in the divorce rate since 1991.

This overall decline in the divorce rate over the last thirty years can be attributed to two significant societal shifts: the aging of the married population and a decreased propensity for divorce among younger married adults.

The rise in the age of the married population can be attributed to the general aging of the people and the preference of younger Canadian generations for common-law unions over traditional marriage.

Additionally, when younger generations choose marriage, they do so at an older age compared to preceding generations. Since the age-specific divorce rates are usually lower amongst older adults, the aging married population has decreased the divorce rate.

Note that the age-specific divorce rates haven’t changed uniformly. Although divorce rates among individuals under 50 remain higher than for older individuals, they have notably dropped, particularly in recent years. Experts often associate this decline, observed in other countries, too, with an increasing selectivity in marriage.

This implies that as fewer people choose to marry, those who do are likely to belong to a distinct group characterized by traits promoting enduring marriages.

From the street view on Divorce Rates

From a different perspective, the declining divorce rate over the past three decades could be viewed in relation to broader cultural and societal shifts. One major factor could be the increased acceptance and prevalence of cohabitation before marriage.

More couples are living together before tying the knot, letting them test their compatibility and resolving potential issues before legally committing. This could lead to more stable marriages and a lower divorce rate.

Second, attitudes toward marriage have been evolving. Many now see marriage as less of a social expectation and more of a choice, leading to decreased marriages. In addition, those who get married might be more committed to marriage, thus reducing the likelihood of divorce. Additionally, the increase in the average age of first marriage could contribute to the divorce rate decline.

Older individuals may be better equipped to handle the challenges of marriage due to more life experience, financial stability, and emotional maturity. Last, there’s also a possibility that the shift towards gender equality and shared household responsibilities have resulted in less marital strife. As more couples share domestic duties and financial obligations, it may alleviate everyday stressors that can lead to divorce.

While these factors may shed light on the decreasing divorce rate, it’s important to note that the topic is complex and can be influenced by many societal and individual features. Yes, maybe an increase in separations without subsequent divorce could contribute to the decrease in divorce rates. However, this trend could be driven by a variety of reasons.

Some couples might separate but not legally divorce due to the financial implications. Divorce often involves legal fees and may divide assets, which couples might prefer to avoid. Additionally, some individuals may remain married to keep certain benefits, such as health insurance coverage, which could end in divorce.

Emotional and cultural factors can also play a role. For example, some people might oppose divorce for religious or cultural reasons and prefer to live separately. For others, the decision might stem from the desire to avoid the perceived stigma attached to divorce.

Finally, more couples are cohabiting without getting married. When these relationships end, they don’t contribute to divorce statistics, even though they are a form of relationship dissolution.

Apprehension about family court lowers Divorce Rate

While the decrease in divorce rates could partially be attributed to increased separations without formal divorce, the topic is complex. It involves a variety of societal, economic, and personal factors. The apprehension about the potential costs and stresses associated with family court proceedings could be a significant factor leading couples to choose informal separations rather than formal divorces.

Legal divorce often involves hiring attorneys and paying court fees, which can be expensive. In addition, dividing assets and determining custody arrangements, if children are involved, can be time-consuming and emotionally draining.

For some, the potential financial strain and emotional turmoil that comes with a formal divorce process can be deterrents, leading them to prefer informal separations.

Informal separations allow couples some flexibility. They can set their terms with no judge’s approval, which might seem more appealing to some. However, note that informal separations can have complications, especially regarding the legal and financial protections a formal divorce agreement can provide.

So, while the fear of family court and its associated costs may lead to increased informal separations, it’s essential to consider the potential long-term implications and ensure both parties are adequately protected.

Number of separated people in Canada 2000-2020

Find more statistics at Statista

Published by Lucie Jeudy, Jul 6, 2021

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:

#1 Trial Separation

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.

#3 Therapeutic Separation

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.

#3 Legal Separation

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 Similarities Between Separation and Divorce

While separation and divorce are two different legal statuses, they share several similarities. These similarities often involve the resolution of shared responsibilities, financial matters, and parenting considerations. In this section, we will discuss the commonalities between separation and divorce, helping you to understand the process and the implications of each.

Resolving Shared Responsibilities

Whether you’re going through a separation or a divorce, shared responsibilities such as child custody, spousal support, and the division of property and debts need to be resolved. Both processes involve making critical decisions about these issues:

Child Arrangements: During separation and divorce, decisions need to be made about the child arrangements, how parenting time will be arranged, and how the children will be financially supported.
Spousal Support: The issue of spousal support, also known as alimony, can arise in separation and divorce situations. The aim is to limit any unfair economic effects of a divorce or separation by providing ongoing income to a non-wage-earning or lower-wage-earning spouse.
Property Division: The division of property, including assets like homes, cars, and savings, as well as liabilities like mortgages and debts, is a common element in separation and divorce. The division can be determined through mutual agreement or, if necessary, a court order.

Legal Agreements

Both separation and divorce often involve creating legal agreements that outline the terms of the separation or divorce. These agreements protect each party’s rights and lay out responsibilities. They usually address issues such as child custody and visitation, division of property, and spousal support. With a separation this agreement is often called a ‘separation agreement.’ In a divorce, the equivalent document is often referred to as a ‘divorce decree,’ which is the final step in the divorce process.

Emotional Impact

Separation and divorce are both emotionally challenging processes. They represent a significant change in life circumstances and often involve feelings of loss, fear, anger, and uncertainty. In both situations, seeking emotional support from professionals, friends, family, or support groups is essential.

Why get a legal separation instead of a divorce?Ken Maynard CDFA, Acc.FM2023-09-04T17:15:43-04:00

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?Ken Maynard CDFA, Acc.FM2023-09-04T17:14:07-04:00

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.

Will legal separation protect me financially?Ken Maynard CDFA, Acc.FM2023-09-04T17:07:26-04:00

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?Ken Maynard CDFA, Acc.FM2023-09-04T17:06:26-04:00

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?Ken Maynard CDFA, Acc.FM2023-09-04T17:05:31-04:00

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?Ken Maynard CDFA, Acc.FM2023-09-04T17:04:28-04:00

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?Ken Maynard CDFA, Acc.FM2023-09-04T17:03:26-04:00

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.

What is the difference between divorced and legally separated?Ken Maynard CDFA, Acc.FM2023-09-04T17:01:14-04:00

What is the difference between divorced and legally separated?

The main difference between being divorced and legally separated is that divorce legally ends the marriage, while separation allows the couple to remain legally married but live apart.

Is separated a legal marital status?Ken Maynard CDFA, Acc.FM2023-09-04T17:00:19-04:00

Is separated a legal marital status?

Yes, in Canada, ‘separated’ is a legal marital status. It requires the couple to live separately for at least one year before they can file for divorce.

Is separation good for a marriage?Ken Maynard CDFA, Acc.FM2023-09-04T16:59:17-04:00

Is separation good for a marriage?

Separation can be beneficial for a marriage as it provides space for personal growth and reevaluation of the relationship. It can serve as a period of reflection and sometimes leads to reconciliation.

What is separation in Canada?Ken Maynard CDFA, Acc.FM2023-09-04T16:58:26-04:00

What is separation in Canada?

In Canada, separation occurs when a married couple decides to live apart while remaining legally married. It serves as a legal marital status after living separate lives for at least one year.

Is divorce the only option?Ken Maynard CDFA, Acc.FM2023-09-04T16:56:46-04:00

Is divorce the only option?

No, divorce is not the only option. Many couples consider legal separation before making the final decision to divorce. Separation can be a stepping stone or an alternative to divorce.

Is it better to separate or divorce?Ken Maynard CDFA, Acc.FM2023-09-04T16:55:44-04:00

Is it better to separate or divorce?

Whether it’s better to separate or divorce depends on various factors, including emotional readiness, financial implications, and the potential for reconciliation. Separation allows you time to think, whereas divorce is a final legal action.

Final Thoughts

Deciding between separation and divorce is pivotal in any married couple’s life. In Canada, you have two options: separation or divorce. Each has its legal and emotional implications, and understanding these is crucial before deciding.

Signing a legal separation agreement can offer a structured environment for couples no longer living together. This legally binding document can outline terms for child custody, spousal support, and division of assets like pensions, RRSPs, RESPs, etc. It’s advisable to seek independent legal advice before finalizing any agreement to ensure it aligns with family law and your best interests.

If you opt for separation, you’re still legally married spouses and must live separately for at least one year before you can file for divorce under the Divorce Act. During this separation period, you may need to sort out various issues surrounding property division, child guardianship, and spousal support. On the other hand, if you decide to proceed with a divorce, you’ll need to go through the legal process, which may involve family court and could result in a divorce order and certificate.

Whether you’re living separate lives or still living together while contemplating your next steps, consulting a family lawyer or divorce mediator is essential. They can guide you through the divorce process or help you draft a separation agreement in line with Canadian law.

In either case, the emotional and financial well-being of all parties involved, especially children, should be a priority. Parenting arrangements must be made with the child’s best interests in mind. If you’re considering separation, it may be a less permanent step that allows you to evaluate your marriage from a distance. However, it’s important to note that legal separation may lead to a divorce if issues are not resolved.

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In conclusion, your path will depend on various factors, including your emotional readiness, financial situation, and your family’s needs. Whether it’s separation or divorce, making an informed decision is crucial. Across Canada, support systems are available to help you navigate these complex choices.

At DTSW

Deciding between separation and divorce is one of the most challenging decisions ever. The emotional toll, the questions about child custody, and the financial uncertainties can be overwhelming. At DTSW, our Family Mediators and Certified Divorce Financial Analysts understand what you’re going through.

You’ve come to this webpage searching for guidance and clarity in a time of confusion. We’re here to offer you a structured approach through our Soft Landing Divorce Settlement Method. This method aims to streamline the process, whether you’re considering the two options of separation or divorce or have already started living separate lives.

Signing a legal separation agreement is often the first step in this journey. This legally binding document can outline terms for child custody, division of assets like pensions, RRSPs, RESPs, etc., and spousal support. Having independent advice from experts who understand family law and your best interests is crucial.

Our method focuses on fast site performance and automated page speed optimizations, symbolizing our commitment to an efficient and smooth process. We aim to resolve your concerns in the least amount of time, often within a whole year immediately or at least 12 months, so that you can move forward with your life.

We understand that every family is unique, and our approach is tailored to meet your needs. Whether it’s parenting arrangements or issues surrounding property division, we’re here to guide you every step of the way.

So, why navigate this challenging period alone? Schedule a Get Acquainted Call with us today and take the first step towards a more secure and peaceful future.

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About the Author:

Ken Maynard CDFA, Acc.FM

I assist intelligent and successful couples in crafting rapid, custom separation agreements that pave the way for a smooth transition towards a secure future. This efficient process is achieved in about four meetings, effectively sidestepping the excessive conflicts, confusion, and costs commonly linked to legal proceedings. Clients have the flexibility to collaborate with me either via video conference or in-person through a DTSW associate at any of our six Greater Toronto mediation centers, located in Aurora, Barrie, North York, Vaughan, Mississauga, and Scarborough.

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