“Separation” refers to the breakdown of either a marital or a common-law relationship: the parties are living separate and apart without reasonable prospect of reconciliation.

For family law purposes, a separation does not require that the parties live in separate homes, only that they no longer live as spouses do. Among the considerations that determine whether separation has occurred are the following:

– do the parties continue to have sexual relations?

– do the parties eat meals together?

– do the parties socialize together?

– do the parties provide domestic services for one another?

The fact of separation is of importance, as it triggers claims that may be brought for custody and access, support and division of property. Further, for married persons, the date of separation is a crystallizing date in valuing property for purposes of property division.

“Divorce” can only be granted between married persons. A divorce is an order made by a court of competent jurisdiction which dissolves a marriage. An application for divorce may be made by either spouse. Accordingly, married persons can sometimes be separated, but not divorced.

Parties are not divorced simply by completing a Separation Agreement.

Under Ontario law, on separation, spouses (both married and common law) may negotiate terms related to the parenting of children, child and spousal support,and the division of property – in fact, all issues arising on their separation, except a divorce (which only a judge can order). The agreed terms can be incorporated in a written document called a separation agreement. if it is carefully negotiated and drafted, it will determine all issues arising on separation. If it is properly prepared and signed, it will be enforceable in a court of law. With a separation agreement and their rights and obligations established, the separated spouses can move securely into the next phase of their lives.

Photo: Craig Cloutier: Flickr Creative Commons License. Cropped; changed to black and white.