Divorce and 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 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 happens when one of the spouses has voluntary sexual relations with a person other than his or her spouse.
- 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.
Your divorce will become final 31 days after the judge signs the order for divorce. You will have to request a Certificate of Divorce from the Court. This may be done in person or by writing to the Court which heard your divorce. If you are unable to attend in person, you may ask a representative to attend on your behalf. There is a fee charged by the Court to obtain this document.