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Separation – FAQs

Separation Information - FAQs

If my spouse cheated, does Canadian law have a way to punish this bad behavior?

If your relationship is ending because you have discovered your spouse cheated on you, it is natural that you may feel shocked, confused, angry, hurt, and even vengeful. But the family law system in Canada is not in place to deal with these feelings, or to judge your spouse’s conduct (or your own). The purpose of family law is only to deal with your separation or divorce, and any related issues, such as spousal support or child custody. The system is what is referred to as “no fault,” and does not take conduct between the spouses into consideration when making decisions related to separation or divorce.

If you wish to pursue a divorce, you will have to establish that the marriage has broken down. The most common way of doing this is though a one-year separation. But you can also establish marriage breakdown by showing adultery. If you establish that your spouse has committed adultery, the court will grant a divorce immediately, rather than forcing you to wait for a one-year separation. However, that is the only difference between applying for a divorce following a one-year separation, and applying for one as a result of adultery. The court will not take the adulterous conduct into consideration when making any other determinations relating to your matter. In other words, the conduct of your spouse is irrelevant, except in that it establishes your entitlement to a divorce.

So, if you discovered your spouse cheated on you, should you seek divorce on the grounds of adultery, or simply separate and wait one year to apply for divorce? Many couples are drawn to the idea of pursuing a divorce based on adultery. If the adulterous spouse is willing to admit to their conduct in court, this route can be beneficial to you because it allows for quicker divorce. You may feel somewhat vindicated by having seen your spouse labeled an adulterer by a court of law. However, if your spouse does not wish to admit to adultery and consent to divorce on these grounds, you will have to litigate the issue and prove the adultery in court. Such a private act can be difficult to prove, and attempting to do so can lead to extensive legal costs, and to excessive time spent in the legal system. It may be quicker, cheaper, and no less satisfying to simply separate, focus on moving on with your life, and apply to the court for a divorce one year later.

For more about how to obtain a divorce, see the article How to Get a Divorce.

Should I leave the matrimonial home?

NOTE: The matrimonial home is defined under the Family Law Act as any home the spouses were ordinarily occupying as a family residence at the time of separation. The matrimonial home refers to the home shared by two people who are married to each other, it does not refer to property shared by cohabiting or common law couples. See the article Common-law Separation for information about what to do if you are considering leaving the home you share with your common-law partner.

It is inadvisable to leave the matrimonial home unless remaining in the home is detrimental to the safety and welfare of you or your children. Leaving the matrimonial home may impact your ability to possess the home or gain custody of your children. If there are children of the relationship and you move out of the home, you may be creating a new status quo with respect to parenting arrangements and schedule. That schedule may impact the Final schedule ordered by a court.

Both parties have an equal right to remain in the home, regardless of whose name is on title. An equal right to the possession of the home and its contents means that a court can make temporary orders for exclusive possession of the matrimonial home under the Family Law Act. When making an order for exclusive possession of the home, the court will consider the best interests of the children as paramount, along with the financial position of the parties, and any instances of domestic violence affecting the safety and wellbeing of all parties involved.

See the Separation article The Threat of Family Violence for more information for what to do if you feel it is no longer safe for you to remain in the home, whether it is the matrimonial home or a home you share with your common law partner. For more information on the unique treatment of the matrimonial home under the law, see the Division of Property article on The Matrimonial Home.

What should I do before I tell my partner I want to separate or divorce?

If you have exhausted all reasonable efforts to reconcile, before telling your spouse or partner you wish to separate or divorce, take the following precautions:

  • Have support measures in place – consider counseling for both you and your children. In cases of domestic violence, ensure you have a safe place to go, and sufficient financial resources to provide the basic necessities.
  • Prepare documents for financial disclosure – these documents are necessary when calculating support and equalization payments. Obtain up-to-date account statements for all assets including: property, investments, RSPs, inheritances, large financial gifts and bank accounts along with Notices of Assessment for the past 3 years (available from Canada Revenue Agency).
  • Maintain the financial status quo: do not deplete joint bank accounts, or abuse joint credit accounts. Courts have deemed such actions to be unconscionable and may resort to punitive measures against you.
  • Ensure you have your original marriage certificate (this is required in order obtain a divorce order).
  • Change passwords and pin numbers on all your financial and social media accounts, as well as your email in general, to ensure continued privacy.
  • Consult a lawyer regarding changing the beneficiary of your will. Also update your Power of Attorney.
  • Consult insurance companies regarding changing of beneficiaries for any life insurance policies you may have.

See the article Things to do BEFORE you Separate for more detailed information on these points.

It is prudent to meet with a lawyer prior to telling your spouse or partner you wish to separate. A lawyer is your best resource in navigating the separation a process, particularly when important issues such as custody and support are relevant to your matter. Even if you choose not to use fully comprehensive legal representation, the Feldstein Family Law Group offers several unbundled services including consultation and representation at key court appearances.

Can we write our own separation agreement?

In order to produce a legally binding document, a separation agreement must comply with provincial statutes. In Ontario, s. 54 of the Family Law Act allows former spouses and cohabitants to enter into an agreement to settle their respective rights and obligations, including:

  1. Ownership or division of property;
  2. Support obligations;
  3. The right to direct the education and moral training of their children;
  4. The right to custody of and access to their children; and
  5. Any other matters in the settlement of their affairs.

The key term is agreement. Cooperation in mapping out the terms of separation can potentially reduce costs. Drafting a separation agreement allows parties to control the particulars of their circumstances rather than abiding by the final judgment of a judge who is a non-invested party.

It is inadvisable to negotiate a separation agreement without legal representation. If you have experienced domestic violence or other forms of power imbalance, seek legal advice prior to negotiating with your former spouse or partner. Having a lawyer draft or advise upon a separation agreement ensures that your legal rights are protected, including your right to honest and complete financial disclosure from the other party.

If you do opt to write your own separation agreement, it is essential that both parties seek independent legal advice from a lawyer and that you exchange full and frank financial disclosure prior to signing. The absence of full disclosure or independent legal advice may lead to a court setting aside the agreement later, upon application of either spouse.

See The Anatomy of a Separation Agreement for more information on what types of issues a separation agreement should address.