When it comes to separation and divorce, there is no “good time” to start the process. Yet, if you ask any family law or divorce lawyer in Ontario, they will likely tell you that January tends to be the most popular month to begin a separation or divorce.

Why January? The reasons vary. It could be the added stress of the holiday season, the desire to give the kids one last holiday together, or the tendency to reflect and make changes in the New Year. Whatever the reason, if you and your spouse are thinking of separation or divorce, here are the answers to some frequently asked questions to help you get started.

What does it mean to be legally separated?

A “separation” occurs when a married or common-law couple decides to end their relationship. From a legal standpoint, you and your (former) spouse must be living “separate and apart” to be considered separated.

To live “separate and apart” a couple must decide that they would like to end their marriage or common-law relationship and act in a way that demonstrates this intention.

Only one person in the partnership must have the intention to legally separate. The decision does not have to be mutual.

A couple may live separate and apart under one roof

If a married or common-law couple is living together, it is typically one person who moves out when they separate. Yet, this is not required. A couple may live separate and apart under one roof.

To live separate and apart under the same roof, you must behave as if you are no longer in a relationship with your spouse. For example, you do not cook or eat meals together, you do not sleep together, you do not do things together as you would if you were still together, etc.

What is the difference between separation and divorce?

A “separation” occurs when a married or common-law couple starts living separate and apart. When couples separate, they go through the process of splitting their finances and deciding how to parent their children going forward.

For married couples, the separation process does not end the marriage. To do this, they must ask a court for a divorce. The divorce order legally ends their marriage.

A divorce is only needed to end a marriage. Common-law couples do not need to go through the formal process of getting a divorce to end their common-law relationship.

What are the common family law issues that I need to be aware of when separating or getting a divorce?

When a married or common-law couple starts the separation or divorce process, they must consider how they will divide their property and finances as well as how they will co-parent their children (if any) going forward.

Dividing your property on separation or divorce

When it comes to property division, the rights and obligations of married couples are different from the rights and obligations of common-law couples.

Property division for married couples

If you are married, you and your spouse must divide the property you share and the debts that you owe. Typically, you and your spouse will share equally in the value of any property you bought during the marriage and any increase in the value of property you brought into the marriage. However, there are some exceptions to this rule. It is also possible that you and your spouse agree to divide your property differently.

Property division for common-law couples

In Ontario, common-law couples are not subject to the same rules for dividing their property when they separate. If you and your spouse are common-law, your shared property will likely remain with the person who bought it. If your spouse helped you buy and take care of your property (i.e. a house or cottage), they may be entitled to part of its value. If you disagree about whether your spouse has a right to part of your property, it is likely that you will have to go to court to resolve the issue.

Property division when there is a domestic contract in place

If you and your spouse have a cohabitation agreement or a marriage contract that says how your property will be divided upon separation or divorce, then the terms of this contract will apply.

Spousal support obligations on separation or divorce

In Ontario, spousal support is available to both married and common-law couples. Spousal support is not automatic. Not every relationship gives rise to spousal support rights and obligations.

Generally speaking, whether you or your spouse is entitled to receive spousal support payments will depend on each person’s role during the partnership, the financial needs of the recipient spouse, and the payor’s ability to pay. If you have a domestic contract that entitles one spouse to spousal support, then spousal support will be payable based on the terms of the agreement.

Dealing with parenting issues on separation or divorce

When a separation or divorce involves children, parents must make several decisions about their children’s care and financial support.

Child support rights and obligations

All children have the right to receive financial support from each of their parents. When parents separate and no longer live together, it is typical that one parent pays child support to the other to ensure that the children’s financial needs are met.

Typically, the parent who pays support is the one who either spends less time with the children or, if the parents spend a similar amount of time with the children, the payor is the parent who makes more money.

The federal Child Support Guidelines set out a standard formula for calculating child support payments based on the amount of time the children spend with each parent and the paying parent’s income.

Determining who has decision-making responsibility for the children.

When parents separate, they must determine who is responsible for making major decisions concerning their children’s health, education, religion, and other important matters that impact their children’s lives.

Decision-making responsibility (formerly called “custody”) may be shared by all parents (joint decision-making) or it may be the responsibility of one parent (sole decision-making). If one parent has sole decision-making responsibility, the other parent has a right to know about any decisions that affect the children’s health, education, religion, and general circumstances.

When it comes to day-to-day decisions about the children’s care, decisions are made by the parent who is caring for the children at that time.

Establishing a parenting schedule

Parenting time (formerly called “custody or access”) refers to the time that children spend in the care of a particular parent. All parents have the right to spend parenting time with their children unless it is not in the child’s best interest. It is best if parents can agree on a parenting schedule for their children. If you cannot agree, you will have to ask the court to set a schedule for you.

Do I need a lawyer to help with my separation or divorce?

While you do not need to work with a lawyer, the separation and divorce process can be tricky to navigate. The rules may seem straightforward, yet an experienced family law and divorce lawyer can help you understand how the law applies to your specific situation. If you are considering, or currently going through a separation or divorce, it is worthwhile to speak with a lawyer who can help you navigate the process with more confidence and ease.

Contact experienced family law and divorce lawyers to help you understand your rights and obligations arising from your separation or divorce.

The professional lawyers at NULaw LLP have extensive experience helping our clients reach fair and efficient solutions to all of their separation and divorce issues, including property division, spousal support, and parenting issues. Contact us at 417-481-5604 or online to book a consultation.

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