FAMILY DIVISION
Divorce and Separation
Separation
Separation occurs when a couple, married or common-law, no
longer lives together as a couple. You do not have to see a
lawyer, go to court, or have a ‘legal separation’ to be legally
separated. You do not need the consent of your spouse or partner
to start living separately. You are considered legally separated
as soon as you and your spouse/partner start living ‘separate
and apart’ from each other with the intention of separating.
Separation usually means living in separate places, but
sometimes a couple stays in the same house even though their
relationship has ended.
This may be for financial reasons or for the stability of any
children involved. Each case is different so, depending on the
circumstances of the case, a couple living under the same roof
may be considered living “separate and apart”.
Some signs that a couple living under the same roof may be
putting an end to joint activities include:
- Staying in separate bedrooms
- Cooking meals individually / doing laundry individually
- Not sharing social activities
Whether you are in a common-law relationship or married, you
will likely need legal settlement of your affairs during a
separation, such as custody and access, child/spousal support,
and division of property.
If there is a separation agreement, these issues may be
resolved without having a judge decide them for you. However, it
is likely that the issue will still go to court to have the
judge make an order.
If there is no separation agreement, and the couple cannot
agree on all the issues involving child support or custody and
access, they can request the assistance of Family Justice
Services, or apply to the court to have a judge decide the
issues.
Divorce
Divorce is the legal end of a marriage. It does not end all
of the obligations between spouses. It simply ends the legal
relationship that was created when two people were married.
The Divorce Act is a federal law that applies to
legally married couples. It does not apply to common law couples
or other unmarried couples.
The Divorce Act sets out the requirements for divorce.
The only ground for divorce is ‘breakdown of the marriage’,
which can legally be established in three (3) ways. They are:
- Separation (1 year)
- You and your spouse must be living separate and apart for at
least one (1) year before a divorce can be granted if
separation is cited as grounds for the breakdown of the
marriage.
- Adultery
- Adultery happens when one of the spouses has voluntary
sexual relations with a person other than his or her spouse.
- Cruelty
- Cruelty may be physical or mental. You must prove that
your spouse made it unbearable or intolerable for you to
continue living together.
Documents and Procedures
To file for divorce, there are several documents required. It
is strongly suggested that you consult a lawyer when considering
a divorce. You can file for divorce without a lawyer, but often
it is considered confusing and time-consuming; obtaining legal
advice is advisable.
In addition to providing the Court with various documentation,
such as the marriage certificate, the applicant must complete
the following Court forms to apply for a divorce:
- Originating Application: This form contains several sections
which must be completed, and will require details of the
marriage, the grounds for seeking a divorce, whether
child/spousal support is being sought, and more.
- Notice to Respondent: This form notifies the other spouse that
a divorce application has been filed, and that if he/she wishes
to contest the divorce petition, they have a window of time in
which to do so.
- Both of these forms must be submitted to the Court, and there
is a filing fee. Once the documents are signed by the Court
Clerk, the applicant will have 6 months to serve the other
spouse with both documents. The papers must be personally
delivered, by somebody other than the applicant. The person who
serves the papers to the spouse must complete an Affidavit of
Service to prove that the spouse has been officially served.
This document also must be filed with the Court.
If the spouse does not respond to the application or challenge
any of the claims, the applicant spouse can proceed with an
uncontested divorce, which is a fairly straightforward
procedure.
If the responding spouse disputes the grounds for divorce or
challenges any of the claims (for custody, support, etc.), this
is called a contested divorce. A contested divorce means that
the applicant will have to prove the contents of their divorce
application; they may have to prove the grounds for divorce, or
give evidence as to why a particular matter such as custody or
support is at issue. The responding party will have the
opportunity to put forward his/her case as well. The focus of
this hearing in Court is usually custody or support; the grounds
for divorce are not usually challenged.
Once you have successfully received your divorce, you will be
issued a Certificate of Divorce. There is a fee charged by the
Court to obtain this document.
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