Whether married or common-law, there is no such thing as “filing” for legal separation in Ontario. Rather, “separation” describes the point in time when spouses begin to live separate and apart.
If the parties don’t agree when separation took place, a judge may have to use evidence to determine the issue, just like any other fact. Either agreement, or a decision of the judge can decide the “legal separation” date.
This page examines some of the common issues that arise from separation and includes a number of links to more specific information.
The legal separation date determines the date of divorce eligibility in most cases. Even for parties who do not require a divorce, the separation date can have a significant impact on their rights and obligations.
When married couples divide property, the value of that property generally gets “locked in” as of the date that they separated. There are notable exceptions to this rule, including the matrimonial home as well as other types of assets. That said, the separation date often determines the value of assets for division. This value may then change after separation. Therefore, different separation dates may result in greater or lesser asset valuations. This in turn can affect the amount each party receives.
The separation date can also affect the property rights of common law couples though the right to share assets from a common law relationship is not automatic.
Whether married, or common law, separation can affect child custody and access. After separation, a new status quo generally forms, likely before the case resolves by Separation Agreement or through the court process. Change to parenting arrangements will nearly always arise when one party leaves the family residence. It can be difficult to later change the new status quo. Reduced parenting time can cause a disadvantage to a formerly equal parent who has left the family residence. Parents should exercise caution before moving out and thereby changing their parenting time with the children. Sometimes a move changes parenting time without the consent of the parent who moves out. It can take a long time to get to court and fix the situation. By then the new status quo may difficult to reverse.
Sometimes a specific incident leads to separation, such as a verbal agreement or decision to separate, an argument, or even an incident of domestic violence. Where the separation date stems from a particular incident, parties may agree about the date without much controversy.
In other instances, pinpointing the date may present greater difficulty. Spouses often live separate and apart while under one roof. In these situations, the date of separation might require more careful consideration. In other words, a physical move by one of the parties to a new location may not happen at the time of separation. As such, it can sometimes be difficult to say the exact date when separation occurred.
In these cases, the relevant considerations will relate to whether the parties were living “separate and apart.” Some recurring issues may be considered, such as:
Though separation does not require legal documentation, parties should consider the broader implications of separation. This will help them to effectively manage the rights and obligations arising form relationship breakdown. The date of separation may have an impact on rights and obligations in many other ways.
The information on this page sets out general principles. It should not be applied to the specifics of a given case without legal advice. If you require more information about separation, please contact us for advice that is specific to your case.
