At the beginning of a relationship breakdown is the separation stage. Separation is difficult for all parties involved and creates a dynamic change in the family unit. This is especially true for couples that have children. It is important to focus on the best interests of the children and isolate them from conflict.
What is Separation?
Separation commences the day married couples begin to live apart and at least one of the spouses has an intention to remain separate and apart. Married couples may separate as an initial step in the divorce process to take time to gain insight into their marriage. Spouses are not considered to be legally separated if it is a mutually agreed upon break, with the intention of getting back together again.
Section 8 of The Divorce Act
Separation is also a 'no-fault ground' for divorce and is dealt with under s. 8 of the Divorce Act. Section 8(2)(a) states that a breakdown of a marriage is established if:
The spouses have lived separate and apart for at least one year immediately preceding the determination of the proceeding and were living separate and apart at the commencement of the proceeding.
Separation agreements occur when the an agreement has been reached between the parties who have co-habited, in or out of marriage, and who have separated, in which they agree on their rights and obligations under the contract. Separation agreements also allow spouses to live separately and apart without legally ending the marriage.
Section 54 of the Family Law Act
Separation agreements are dealt with through section 54 of the Family Law Act and may include the following:
Spouses are obligated to provide financial support, either to the other spouse, child/ren or sometimes both during a marriage separation.
Division of property and/or ownership
Upon separation, spouses begin to work out how to divide the marital property. Many aspects of the property division are automatic, due to the Family Law Act, however some aspects of property division can be contracted out of pending agreement terms.
Custody and access of children
Separation agreements can also be used to achieve custody and access of the children. It is important to carefully arrange these terms, because they can be used to set a 'status quo' for access down the road. The 'status quo' is a term used in the court proceedings to determine how the children's living arrangements will be established. For example, if upon separation there is an access schedule agreed upon soon thereafter which has the children spending every other weekend with one parent, then the courts will be inclined to follow the established status quo unless there are significant circumstances which warrant a change. In determining these issues, the courts always consider the best interests of the children to be paramount.
It is important to note that custody and access are two separate issues. Access pertains to how much time the children spend with each parent, while custody pertains to the ability to make certain decisions with respect to the children's well being. Often courts will award joint custody even where the children spend much more time with one parent over the other.
After parties have been separated for one year, they can commence divorce proceedings. Separated parties who have not divorced are still legally married. If the parties begin to live together for a period of 90 days or longer, they are no longer separated. Often separation agreements will include a clause that eventually makes the agreement voidable if there is co-habitation for a period of 90 days or longer to reflect this. It can be argued, however that parties may still live in the same premises (ie. basement level and upper level) and still be considered to be living 'separate and apart'. Some families have made arrangements to reflect this to make things easier for the children.
No matter what the personal circumstances are, separation is a very challenging and difficult process. Separation can bring up all kinds of emotions and will have an impact on your children as well as your finances. If you are considering separating from your spouse, or are separated and need legal advice, please contact our office: 416-924-5969