When a relationship breaks down, understanding your legal options can feel overwhelming. Many clients ask about the difference between separation and divorce. Both relate to the end of a relationship, but they have distinct legal implications. Understanding these differences is essential for making informed decisions about your future.

Separation: The First Step

Separation occurs when two people in a marriage or common-law relationship decide to live apart to end their relationship. In Ontario, no formal legal steps are needed to be considered separated.

Key Points About Separation:

• No Legal Process Required: Separation does not need court involvement. You and your partner can separate informally. Alternatively, you can create a separation agreement that details terms for parenting, support, and property division.
• Legal Rights and Obligations: Even after separating, legal obligations like spousal support or child support will continue. These are often outlined in a separation agreement or determined by a court if an agreement can’t be reached.
• Time frame for Divorce: In Canada, married couples must be separated for at least one year. Only then can they apply for a divorce. This separation period allows time to resolve issues related to the relationship breakdown.
• Common-Law Separation: For common-law couples, separation occurs when the relationship ends and the couple stops living together. Common-law couples do not need a divorce. But, they still need to handle issues like property division and support. These issues can be resolved through a separation agreement or court order.

Divorce: The Legal End of a Marriage

Divorce is the legal process that formally ends a marriage. In Canada, divorce is governed by the Divorce Act and requires a court order. Once a divorce is granted, you are no longer legally married and may remarry.

Key Points About Divorce:

• Grounds for Divorce: In Canada, the only ground for divorce is the breakdown of the marriage, which can be established in one of three ways:
  • You have been separated for at least one year.
  • Your spouse has committed adultery.
  • Your spouse has been physically or mentally cruel, making it intolerable to continue the marriage.
• Legal Process: Obtaining a divorce involves several steps. First, issue an application with the court. Then, serve the necessary legal documents. You will need to pay court fees. In some cases, attending court hearings is also required. If both parties agree on issues like child custody and property division, the process can be straightforward. Yet, disputes can make the process more complex and time-consuming.
• Finality of Divorce: Once a divorce is granted, it is final. You will get a Certificate of Divorce, which legally confirms the end of your marriage. This document is required if you plan to remarry.
• Impact on Legal Rights: A divorce does not automatically resolve issues like spousal support, child support, or property division. These matters must be addressed separately through a separation agreement or court order.

Separation vs. Divorce: Which Is Right for You?

The decision to separate or pursue a divorce depends on your unique circumstances. Consider these factors:

• Timing: If you are uncertain about ending your marriage permanently, separation provides a chance to live apart. You can keep the legal status of being married.
• Legal Clarity: A divorce provides finality and clarity. This can be important if you wish to move on with your life. It is especially relevant if you are considering remarrying.
• Financial and Emotional Considerations: Separation can be less costly than divorce. It may also be less emotionally taxing. Still, certain legal issues can stay unresolved.

How a Family Law Lawyer Can Help

Whether you are considering separation or divorce, seeking legal advice is essential to protect your rights and interests. As an Ontario family law lawyer, I can:

• Draft a Separation Agreement: Tackle key issues like child custody, support, and property division.
• Guide You Through the Divorce Process: Make sure that all legal requirements are met and navigate court procedures when necessary.
• Advocate for Your Rights: Represent you in court if disputes arise, protecting your interests and seeking favorable outcomes.

Final Thoughts

Separation and divorce are distinct legal processes, each with specific implications. Understanding the differences can help you make informed decisions about your relationship and your future. If you are facing a relationship breakdown, I encourage you to contact my office for a consultation. Together, we can explore your options and develop a strategy that works best for you and your family.

Spousal support is a critical consideration in many family law cases in Ontario. If you are going through a separation or divorce, find out whether you have the right to spousal support. Learn how it is calculated. This information can help you plan for your financial future.

What Is Spousal Support?

Spousal support is a payment made by one spouse to the other after separation or divorce. The purpose is to alleviate financial hardship. It compensates for sacrifices made during the marriage and ensures a fair financial arrangement between the parties. The purpose is to relieve financial hardship. It provides compensation for sacrifices made during the marriage. It ensures a fair financial arrangement between the parties.

Who Is Entitled to Spousal Support?

In Ontario, entitlement to spousal support is not automatic. Courts consider various factors to decide whether a spouse is entitled, including:

1. Length of the Relationship: Longer marriages often give rise to spousal support obligations.
2. Roles and Contributions: If one spouse sacrificed career opportunities, that is a significant fact in support entitlement.
3. Economic Disadvantage: A spouse can face financial hardship because of the separation. This is due to a dependency because of the marriage. If their earning capacity is lower, support can be justified.
4. Child Care Responsibilities: One spouse is the primary caregiver for young children. This role limits their ability to work.

Both married and common-law partners are eligible for spousal support. Common-law partners must have lived together for at least three years or have a child together to qualify.

Types of Spousal Support

Spousal support can take different forms, including:

• Periodic Payments: Regular monthly payments over a set period.
• Lump-Sum Payments: A one-time payment, often used when ongoing financial ties are undesirable.
• Temporary Support: Payments made during the divorce or separation process until a final agreement or court order is reached.

How Is Spousal Support Calculated?

Entitlement is based on the factors mentioned above. The amount and duration of spousal support are typically guided by the Spousal Support Advisory Guidelines (SSAG). These guidelines offer ranges for support amounts and duration based on several key factors:

1. Length of the Relationship

Longer relationships generally lead to higher and longer-lasting support obligations.

2. Income of Both Spouses

The SSAGs use the gross incomes of both spouses to decide support amounts.

3. Child Support Considerations

If child support is also being paid, it takes priority over spousal support and can affect the amount payable.

4. Compensatory vs. Non-Compensatory Support

• Compensatory Support: Designed to compensate a spouse for sacrifices made during the marriage.
• Non-Compensatory Support: Based on financial need and the ability of the other spouse to pay.

Spousal Support Duration Guidelines

The duration of spousal support is also guided by the SSAGs:

• Short-Term Marriages: The duration of support might be less.
• Long-Term Marriages: The duration of support may be indefinite or for a significant period. This is especially true if the marriage lasted 20 years or more. It also applies if the recipient is close to retirement age.

Changing or Ending Spousal Support

Spousal support orders or agreements are not always permanent. They can be reviewed, varied, or terminated based on changes in circumstances, like:

• Significant changes in income for either spouse
• Retirement
• Re-marriage or cohabitation of the recipient

How to Decide Your Spousal Support Rights or Obligations

Every situation is unique, and the SSAGs offer only guidelines. Courts have discretion, and factors like pre-existing agreements, special circumstances, or misconduct also play a role.

Final Thoughts

Navigating spousal support can be complex, and understanding your rights and obligations is essential to achieving a fair outcome. If you are going through a separation or divorce in Ontario, consult an experienced family law lawyer. They can help you find out whether you have the right to spousal support and how much you can expect.

If you have questions or need legal assistance with spousal support, contact our office for a consultation. We are here to guide you through this challenging time and help you protect your financial future.

The recent case of Cosentino v. Cosentino has an interesting treatment of contingent tax liabilities owing at separation.  The decision confirms the willingness of courts to discount even tax liabilities where, at the date of separation, they are uncertain.  In the Cosentino case the tax liability did not exist at the date of separation, but arose after. The solicitors online are the best way to go for legal options.

Justice Perkins wrote:

It would be stretching the meaning of “liability” to include an obligation that arose later, merely because it was calculated in relation to a year when the parties were still living together. Not only had the reassessment not come into existence on the valuation date, but also there was no suggestion that it was coming. Taking a financial snapshot of the husband on that date, no one would have suggested he was subject to any contingent liability for income tax.

The decision once again confirms the approach of valuing contingencies prospectively.  The approach requires looking at the circumstances that were in existence at the date of separation  rather than in hindsight.

Does a separation affect your will ? 

Let’s say you have a Will in place. You named your spouse as a beneficiary and perhaps your young children as secondary beneficiaries, just in case something were to happen to you and your spouse. Now add in a separation between you and your spouse, mix it with a pinch of chaos and you have a recipe for disaster, and you will need a lawyer expert on wills, as well as possibly seeking corporate investigation services to ensure the legality and integrity of your affairs during this tumultuous time. Upon separation, a gift to a spouse in your Will becomes revoked under the Wills, Estates and Succession Act (WESA). You may think everything’s fine and there is no need to update your Will…wrong! If you do not update your will upon separation, the mere revocation of your spouse as a beneficiary does not allow for adequate planning for other beneficiaries, especially young children. A minor beneficiary requires an appointed trustee to manage the money and they are unable to receive the benefit until they are of age. For a revocation of a spouse as a beneficiary, there must be clear evidence of a separation to end a spousal relationship. Married couples must wait one year prior to obtaining a divorce, however, putting a separation agreement in place immediately at separation is not only efficient and saves you money when obtaining a divorce, but is also clear evidence of a separation which bars your ex-spouse from being a beneficiary in the event of your death. Common law couples (couples cohabitating with one another for a period of two years in British Columbia, three in Alberta) often think a separation agreement is unnecessary; however, a separation agreement is evidence to support the end of a spousal relationship and it can ultimately prevent your ex-spouse from being a beneficiary.

If one spouse dies prior to finalizing a separation agreement or a divorce, the surviving spouse could make a claim to their estate under WESA. If your Will has been updated to clearly reflect that a separated spouse is not entitled, a claim under WESA cannot be made. It is therefore important to seek advice from an Estate Planning Lawyer soon after separation so these provisions can adequately be drafted.

We don’t like worrying about the future. We don’t want to think about what happens to our house or money after we’re gone.

But what about our loved ones? Our loved ones will have enough to worry about.  If the worst happens, we can make life easier for them by planning ahead.

We have practiced estate law for years.  We know that preparing a will can be draining . We can guide you through the steps and explain your best options.

Preparing a will ensures that your property will be dealt with according to your wishes. You can make sure that a cherished family heirloom stay in the family.  You can decide if your common-law-spouse lives out his or her life in your house.

Part of your estate plan involves a power of attorney. Ontario has three different types of powers of attorney.  You choose another person to make decisions on your behalf. Do you expect needing a medical proxy to help you make healthcare decisions when you are incapacitated? You may want to start planning now.  You can make your wishes known in case of your future incapacity.

These are difficult issues to think about, but they are too important to ignore. Consult a lawyer with expertise in the area of estate planning.  Give yourself peace of mind about the future.

Same sex couples from abroad who have married in Ontario face a one year residency requirement before seeking a divorce in the Province.  Under Canada’s Divorce Act, an applicant must meet a residency requirement of one year in the Province in which before the remedy is requested.

The issue has been challenged in the Courts.

There are new child support tables effective January 1, 2012.  The new tables can be accessed at the Department of Justice’s website.

Justice Brownstone of the Ontario Court of Justice recently wrote on the state of law on joint custody in Ontario.  In the case of Hsiung v. Tsioutsioulas, Justice Brownstone wrote:

[17]                  I am acutely aware that an order for joint custody should not be made in cases where the parents have been unable or unwilling to demonstrate the capacity and willingness to communicate and to co-operate with each other and make decisions together in a civilized, child-focussed way…..  However, courts are increasingly prepared to order joint custody, even in high conflict cases, where satisfied that the parents have insulated the children from the conflict and sufficient protective factors are in place to ensure that the joint parental authority will be workable…  Moreover, in recent years, there has been more willingness to grant joint custody where such an order is necessary to preserve the balance of power between the parents, especially where one parent has been primarily responsible for the conflictual relationship… consider this to be such a case.