What is the difference between separation and divorce?

A separation occurs when one or both spouses decide to live apart with the intention of not living together again. Once you are separated, you may need to discuss custody, access and child support with your spouse. You may also need to work out issues dealing with spousal support and property. You can resolve these issues in different ways:

You can negotiate a separation agreement. A separation agreement is a legal document signed by both spouses which details the arrangements on which you have agreed. In some jurisdictions, independent legal advice is required to make the document legally binding.
You can make an application to the court to set up custody, access, support and property arrangements under the provincial or territorial laws that apply to you.
You can come to an informal agreement with your spouse. However, if one party decides not to honour the agreement, you will have no legal protection.

To legally end your marriage, you need a divorce, which is an order signed by a judge under the federal law called the Divorce Act.

What if we were never legally married?

If you are not legally married, divorce does not apply to you. However, you can still negotiate a separation agreement or make an application to the court under the laws in your province or territory to set up custody, access, child support and other arrangements. Common-law spouses have fewer rights upon separation than married couples.

Is the marriage over once I begin divorce proceedings?

The marriage is not over until a judge grants you a divorce order at the end of the process.

Before you begin divorce proceedings, you may wish to consider whether marriage counselling could help you and your spouse. Once you have started formal divorce proceedings, you may stop the process at any time if you and your spouse wish to think about reconciling.

Who can apply for a divorce in Canada?

You can apply for a divorce in Canada if:

  • you were legally married in Canada or in any other country; and
  • you intend to separate permanently from your spouse and believe there is no chance you will get back together, or you have already left your spouse and do not intend to get back together; and
  • either or both of you have lived in the Canadian province or territory for at least one year immediately before applying for a divorce in that province or territory.

Do I need a reason to get a divorce?

To get a divorce, you will have to show that your marriage has broken down. The law says marriage breakdown has occurred if:

  • you and your spouse have lived separate and apart for one year with the idea that your marriage is over; or
  • your spouse has committed adultery and you have not forgiven your spouse; or
  • your spouse has been physically or mentally cruel to you, making it unbearable to continue living together. Cruelty may include acts of physical violence and those causing severe mental anguish.

You can get a divorce if one of these situations applies to you.

Do I have to prove that my spouse is responsible for our marriage breakdown?

Under the Divorce Act, you do not need to prove that your spouse was at fault in order to get a divorce. If the reason you are asking for a divorce is marriage breakdown, shown by one year of living apart, either of you can request a divorce. It does not matter which one of you decided to leave. In fact, the law gives you the choice of applying to the court together to ask for a divorce.

However, if the reason you are asking for a divorce is marriage breakdown because of adultery or mental or physical cruelty, you will have to have proof of what happened.

How do I start a divorce application?

It is always advisable when starting a divorce application to speak to a lawyer knowledgeable about family law. A lawyer can tell you exactly how the law applies to your situation and how to protect your rights. You can then decide what to do.

  1. To start a divorce application, you fill out the appropriate forms for your province or territory. If you have a lawyer, he or she will fill out the forms for you and will be responsible for processing the divorce. You may obtain forms at government bookstores, some private bookstores and, in some cases, from the Internet. In some jurisdictions, court offices and information centers provide forms.
  2. There are a few things in particular that you have to include in the forms. If there is a child of the marriage, you need to write down the parenting arrangements, including financial support. If these arrangements are in dispute, you will need to describe the arrangements that you are seeking.
  3. Once you have completed all the forms, you file them at the courthouse, pay the required court fees, and follow the court rules and procedures for your province or territory.

What if I apply for a divorce and then try to live with my spouse again?

Before or after you have applied for a divorce on the ground of one-year separation, you can live together for up to 90 days for the purposes of reconciliation. If things don’t work out, you can continue your action for a divorce as if you had not spent this time together.

What happens if my spouse and I agree on all the issues raised by the divorce?

If you and your spouse agree on all issues, you have an uncontested divorce.

How are decisions made about custody of the children?

Often, deciding on a parenting arrangement after a marriage is over is not easy. Under the Divorce Act one or both parents may have custody of the children.

If you cannot agree on a parenting arrangement, the divorce law sets out some basic principles that a judge must use when making decisions about children.

  • The best interests of the children come first.
  • Children should have as much contact as possible with both parents so long as this is in the children’s best interests.
  • The past behaviour of a parent cannot be taken into consideration by the court unless that behaviour reflects on the person’s ability to act as a parent.

When deciding on the best interests of the child, the judge will take into account a number of factors including:

  • Care arrangements before the separation. (Who looked after the child most of the time? Who took the child to the doctor and dentist? Who arranged extracurricular activities? Who dealt with the child’s school and teachers?)
  • The parent-child relationship and bonding.
  • Parenting abilities.
  • The parents’ mental, physical and emotional health.
  • The parents’ and the child’s schedules.
  • Support systems (for example, help and involvement from grandparents and other close relatives).
  • Sibling issues. Generally, brothers and sisters remain together, but under some circumstances it may be necessary to consider separating them.
  • The child’s wishes. (There is no magic age at which a child has the right to decide where he or she is going to live. The court gives more weight to the child’s wishes as the child matures. An older teenager’s wishes will often be decisive.)

What is joint custody?

Sometimes both parents want a divorce, but want to continue to share their responsibilities as parents equally. Joint custody means that both of you have custody of the children. In other words, you both continue to share in making all the major decisions concerning the children (about discipline, school, major outings, holidays, etc.). If there is joint custody, many different living arrangements are possible. The children may live with each parent about the same amount of time or live mostly with one parent.

What are my responsibilities if I have custody of my children?

If you and your spouse agree that you should have custody of the children, or if the judge decides that you should have custody, you have the responsibility for making the major decisions about your children’s upbringing and schooling. The children will usually live with you most of the time.

In most cases, the other parent still has responsibility to care for the children some of the time. Remember, the law says that there should be as much contact as possible with both parents as is best for the children. However, in serious circumstances, a judge may decide that it is in the children’s best interests not to spend time with the other parent.

Children benefit from the opportunity to develop meaningful relationships with both parents and with other extended-family members as long as it is safe and positive to do so.

I don’t have custody. Can I still spend time with my children?

Generally, the parent who does not have custody of the children still has responsibility to spend time with them. If you cannot agree on these access arrangements, the court will decide for you.

A parent with access:

  • usually spends time with the children, such as on a weekday evening, on weekends and on holidays; and
  • may ask for information about the children—news about their health and well-being and about how they are doing at school.

As a parent with access responsibilities, you can ask the court to order the other parent to give you advance notice—at least 30 days—if he or she intends to move the children to another home.

Do I have to use the terms “custody” and “access” when deciding upon parenting arrangements?

The Divorce Act uses these terms, but this does not limit the types of parenting arrangements that may be included in written agreements or legal documents. Other words or descriptions can also be used to set out parenting roles and responsibilities.

How is the amount of child support determined?

Even after divorce, both parents have a legal duty to support their children financially.

Once you have worked out the residential arrangements for your children, you will need to look at the payment of child support. Before granting a divorce, the judge must be satisfied that appropriate financial arrangements have been made.

You will use a set of rules and tables, called child support guidelines, to help you figure out the amount of child support. The federal government has produced a number of publications to help you calculate child support.

Who pays child support depends on the child’s residential arrangements. The basic amount is based on three things:

  • the paying parent’s income;
  • the number of children involved; and
  • the province or territory where the paying parent lives.

In some circumstances, the base amount can be increased or decreased. For example, the amount could be adjusted if the children have special expenses, such as childcare. The amount could also be adjusted to prevent financial hardship for a parent or the children. This might be fair when, for example, the parent paying the child support is suffering a hardship—perhaps because that parent is supporting a new family and has a lower standard of living than the parent receiving the child support.

  • The person who receives the child support payments does not have to list them as income on his or her income tax form.
  • The person paying the child support cannot deduct the support payments from his or her income.

How is spousal support decided?

During a marriage, spouses usually share their love, their time and their income. They both invest in their life together. But unlike an investment with a bank that pays a given amount of interest, an investment in a life together is difficult to add up and then divide.

Both spouses’ contributions to a marraige all have value. There are multiple things to consider when determining spousal support.

For example, you may have worked and paid all the bills. Maybe you worked while your spouse trained to get a better job. Or you may have helped in your spouse’s business. Often, a spouse gives up a job so that he or she can stay home, manage the household, and care for the children. The Divorce Act sets out factors and goals to be considered when figuring out if one spouse should pay another spouse financial support after a divorce. Among these factors are answers to the following questions.

  • How long did you live together?
  • What was your role in the marriage?
  • Who is living with the children?
  • The amount of spousal support to be paid depends on the needs of each spouse and on their income and resources.

Other things are also important. The law sets several goals to keep in mind.

  • Spousal support should give value to the contributions made during the marriage. If one spouse has benefited financially from a contribution, the other spouse should be compensated.
  • Another goal is to make sure that after a marriage is over, one spouse doesn’t suffer economic hardship.
  • A third goal is to make sure that the spouse who lives with the children is not at a financial disadvantage because of that.
  • Finally, spousal support should help each spouse become economically independent within a reasonable amount of time, if possible.

A judge can order one spouse to pay spousal support to the other for a particular amount of time or indefinitely.

Does it matter whose fault it is that the marriage is over?

The reasons your marriage is over have nothing to do with your financial obligations to each other after a divorce. The divorce law says clearly that the court will not consider the behaviour or misconduct of either spouse in deciding on support payments. Fault is not taken into account.

How do we divide up our property?

The Divorce Act does not deal with sharing your property or debts. Each province and territory has its own law that sets out the rules for dividing the property and debts you and your spouse have.

“Property” includes such things as the home you and your spouse shared, its contents, any other real estate, pensions from employment, Canada or Quebec Pension Plan credits, RRSPs, investments, bank accounts and cash. Debts include such things as amounts you owe on your credit cards, your mortgage, and any loans you have. Some provinces or territories also include business assets in their definition of property. It is very important to receive legal advice on property division.

Usually, people who are separating come to an agreement about how to divide the property and debts fairly. This agreement may become part of the written separation agreement.

For separation agreements to be legally binding, they usually require independent legal advice and full financial disclosure.

In some provinces and territories, if you wait too long after your separation or divorce to make a claim, you may lose all your rights to share in family property or spousal support.

Canada Pension Plan (CPP) credits are a special category of property. Once you and your spouse are separated, and if you meet other basic requirements, you or your spouse can fill in a form to ask the CPP to divide equally the CPP credits you both earned while you were married. The Quebec Pension Plan (QPP) also allows you to split your pension credits.

Your local Canada Pension Plan office has pamphlets that tell you how to do this.

For more information on dividing property, please consult a lawyer.

What do I need to know about family violence?

Some important words about family violence

“Family violence” is a term that includes many different forms of physical or psychological abuse or neglect. It can be experienced by adults or children in a family.

Many forms of family violence are crimes, including:

  • physical abuse (such as hitting, punching, kicking, burning, cutting, stabbing, forcibly confining or shooting);
  • sexual abuse (such as any unwanted sexual touching or sexual activity and any sexual conduct with children)
  • some forms of psychological abuse (such as threatening violence, destroying property, stalking),
  • financial abuse (such as taking a pay cheque, failing to provide the necessaries of life).

Other forms of family violence are not crimes but are often signs that violence will get worse (such as yelling, humiliating, controlling movements).

Family violence can have serious – and sometimes fatal – consequences for victims and those that witness the violence.

If your spouse physically or psychologically abused you or your children, your family’s future safety becomes of primary concern. There are many people and organizations available to help you in this situation, such as lawyers, social workers, counsellors, support groups or your local shelter or transition house.

Traditional mediation or counselling with your spouse may not be appropriate in these circumstances. However, in some provinces or territories, specialized counselling procedures have been developed to support couples when there are concerns about violence. Working together doesn’t always mean sitting in the same room.

What if my former spouse is not obeying the court order or divorce judgment?

Your divorce judgment may include court orders dealing with parenting, child support and spousal support. Both parents must obey these orders. When one parent does not, the other parent can take action.

Here are two examples.

  • When you are scheduled to see your child but your former spouse will not allow it, you can go back to court to ask for help. A judge may set out a very specific schedule for access or grant extra time to make up for the visits you missed. You could also ask the judge to change the parenting arrangements.
  • When your spouse is supposed to pay child or spousal support under a court order, but is not paying, enforcement offices will help you collect the money. All provinces and territories have these offices.

To find out how you can get help dealing with these situations, get in touch with your local court or family law information office, the support enforcement program in your province or territory, or a lawyer.

How can I get a court order changed?

The divorce judgment legally ends your marriage and that cannot be changed. But sometimes you may need to change other parts of the judgment, such as the parenting arrangements for the child, or child or spousal support. You may ask a judge to change an order for custody or access when there has been a significant change in the condition, means, needs or other circumstances of the child and/or yourself or the other parent since the last order was made. You may ask a judge to change an order for child support if:

  • the special expenses of the child change;
  • your income or your former spouse’s income changes; and/or
  • there are other significant changes in your circumstances or those of your former spouse or the children. In some cases, you may also change a spousal support order.

If you cannot agree, you can go back to court, present your case and ask a judge to make a new order.

Where can I get more information?

There are many professional people, organizations and other sources that can help you or provide more information:

  • A family law lawyer.
  • An information centre specializing in family justice.
  • A parent education course for separating parents.
  • Duty counsel at a legal aid office.
  • A community legal clinic.
  • A university law school with a student-run legal information service.
  • A public legal education and information organization.
  • A law society or bar association referral service for a lawyer.
  • A mediator, social worker or counsellor.
  • An emergency shelter.
  • A divorce support or self-help group.
  • Relevant library books and videos.
  • A multicultural community organization.

The yellow pages, white pages or blue pages in your telephone book have listings for many of these resources. A librarian at your public library may also be able to help you.

Note: Divorce Q & A has been extracted and summarized from “Divorce Law Questions and Answers”. Department of Justice Canada; Ottawa, 2006. Full text is available on the internet at: http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/pub/divorce/index.html