Whether you are married or in a common-law relationship, 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, it could be determined by a judge using evidence, just like any other fact.
The date of separation is important because it is the primary way of determining divorce eligibility. Even for parties who do not require a divorce, the separation date can have a significant impact on their rights and obligations. This page examines some of the common issues that arise from separation and includes a number of links to more specific information.
Sometimes there is a specific incident that 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, it can often be agreed without much controversy.
Other cases are not so simple. It is relatively common for spouses live separate and apart while under one roof. In these instances, the date of separation is not always clear. In other words, a physical move by one of the parties to a new location is not a necessary part of separation. As such, it can sometimes be difficult to pinpoint the moment in time when separation occurred.
When parties cannot agree about the separation date, a judge will sometimes have to determine the date by making findings of fact. 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:
- How much time the parties continue to spend together
- Cooking, cleaning, and shopping together or for each other’s benefit
- Communication: nature and tone, subject matter, frequency
- Manner in which parties spend leisure time, together or apart
- Occupation of separate parts of the residence
Establishment of a separation date can have a major impact on the rights and obligations of the parties after the conclusion of the relationship.
When married couples are dividing property, the value of that property is generally determined 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 can often be important as the value of assets (and therefore the potential entitlement to that value) can change with time. As such, different separation dates may result in greater or lesser asset valuations, which in turn can affect the way in which property is ultimately divided.
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 a couple is married, or lives common law, separation is also relevant to child custody and access. It is often the case that separation affects parenting roles, and a new status quo forms before the case is resolved by Separation Agreement or through the court process. This is particularly so where one party leaves the family residence. It can be difficult to displace such a status quo, and this in turn can cause a disadvantage to a formerly equal parent who has left the family residence and thereby given up the role of equal care giver to the children.
Though it is simple enough to separate, and no legal documentation is required to do so, it is important to consider the broader implications of separation so as to effectively manage the rights and obligations arising form relationship breakdown. The information on this page sets out general principles only and should not be applied to the specifics of a given case without legal advice. There are many other ways that the date of separation can have an impact on rights and obligations (for example on spousal support or even immigration sponsorship).
If you require more information about separation, please contact us for advice that is specific to your case.