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FREQUENTLY ASKED QUESTIONS ABOUT
SEPARATION

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The answers set out below are intended only to provide general information. Every person's situation is unique and most often there are more matters to consider than what is set out in the individual questions. As well, if you live outside of Ontario your provincial or territorial legislation will be different from that inside Ontario. In every case, whether you live in or out of Ontario, you should consult an experienced family law lawyer fully informed about your circumstances and not act solely on the information set out here.

If you have a particular question not dealt with below you can send us an e-mail enquiry and we'll be sure to get back to you shortly.


What is the importance of being separated?

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Under the Divorce Act one of the ways to establish marriage breakdown, which allows the court to grant a divorce, is to prove that the spouses have lived apart (have been separated) for at least one year immediately before the divorce judgment and were living separate and apart at the time the proceedings began. That is, if you are using one year of separation to establish the breakdown of the marriage, you can't begin the proceeding until after you are already separated and can't finalize it until after you have been separated for at least one full year. This is one reason for needing to know when you were separated.

An other reason for knowing the date of your separation is that under the Family Law Act that is the date used to calculate the equalization payment. The date that "the spouses separate and there is no reasonable prospect that they will resume cohabitation" is the most common "valuation date" used to work out the equalization amount to be paid.


How do I know if I am legally separated?

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There is no such thing as a "legal" separation because there is no such thing as an "illegal" separation. Either one is separated or not. Usually it's not difficult to determine. But sometimes it is.

Under the Family Law Act the parties must be separated and without "reasonable prospect that they will resume cohabitation". Often one party thinks there may still be a chance of getting back together and working things out. To that party there still may be a "reasonable prospect" of resuming cohabitiation.

But if it is clear that at least one of the parties is acting such that there is no prospect of them reuniting in the minds of a reasonable person, the couple will be regarded as separated.


Is there any difference between living "separate and apart" or "separate"?

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No.


How can I tell if I'm living separate and apart?

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It's easy if you and your spouse live at different places. Then you have been separated at least since the time you've had separate residences.

But you can be living separate and apart under the same roof and even in the same bed, depending on the circumstances. In those cases the courts will look at such things as: if you and the person you say you are separated from have been having sexual relations, are continuing with a shared social life, eat together, share the same food in the kitchen, do your laundry together, etc. This can be a delicate question. Usually the actual date of separation doesn't matter much unless there is a doubt if you were separated when the divorce proceedings were begun or if a year has passed so that the divorce can be finalized.

The actual date of separation can also be important with respect to dealing with your property. If that's an issue for you, check out Equalization & Property Rights.


Click here to submit any questions you may have about being separated. Thanks, joel Miller.


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