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Difference between revisions of "Separation and the Law"
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{{JP Boyd on Family Law TOC|expanded = separation}} | {{JP Boyd on Family Law TOC|expanded = separation}} | ||
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Separation usually signals the breakdown of a married or unmarried relationship. It can be one of the most traumatic stages in the conclusion of a relationship, but it can also lead to reconciliation and the resumption of life together as a committed couple. Separation occurs when one or both spouses decide that their relationship is over and say so; there's no need for a "legal separation", to hire a lawyer or to seek the approval of a judge. | Separation usually signals the breakdown of a married or unmarried relationship. It can be one of the most traumatic stages in the conclusion of a relationship, but it can also lead to reconciliation and the resumption of life together as a committed couple. Separation occurs when one or both spouses decide that their relationship is over and say so; there's no need for a "legal separation", to hire a lawyer or to seek the approval of a judge. | ||
This page discusses the legal aspects of separation, the rules relating to reconciliation and some of the other issues you may want to consider once you have separated or have decided to separate, and applies to married spouses and unmarried spouses. It will also address some common questions about sex and new relationships after separation. The next page, | This page discusses the legal aspects of separation, the rules relating to reconciliation and some of the other issues you may want to consider once you have separated or have decided to separate, and applies to married spouses and unmarried spouses. It will also address some common questions about sex and new relationships after separation. The next page, [[Separating Emotionally]] , talks about the emotional dimensions of separation and how those emotional issues can influence the resolution of the legal issues. | ||
==Introduction== | ==Introduction== | ||
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Everyone is entitled to separate if they wish to end a relationship, and you don't need to see a lawyer to do so; the function of the family law lawyer is to assist in the resolution of the issues arising from the breakdown of the relationship. | Everyone is entitled to separate if they wish to end a relationship, and you don't need to see a lawyer to do so; the function of the family law lawyer is to assist in the resolution of the issues arising from the breakdown of the relationship. | ||
Now, to be fair, what people often mean by "legal separation" is a ''separation agreement''. This is something else altogether. A separation agreement is a contract that a couple use to record their agreement about things like how the children will be cared for, how their property will be shared, how child support and spousal support will be paid, if they're to be paid at all, and usually has nothing at all do with whether a couple have separated or not. Separation agreements are not always necessary, and you can't be forced to sign a separation agreement. See the | Now, to be fair, what people often mean by "legal separation" is a ''separation agreement''. This is something else altogether. A separation agreement is a contract that a couple use to record their agreement about things like how the children will be cared for, how their property will be shared, how child support and spousal support will be paid, if they're to be paid at all, and usually has nothing at all do with whether a couple have separated or not. Separation agreements are not always necessary, and you can't be forced to sign a separation agreement. See the [[Separation Agreements]] page for more information about separation agreements. | ||
===The Date of | ===The Date of separation=== | ||
Under the old ''Family Relations Act'', married spouses rarely argued about when they separated. The issues was sometimes important for unmarried spouses because their ability to ask for spousal support depended on whether they started a court proceeding within one year of the date of separation. | Under the old ''[[Family Relations Act]]'', married spouses rarely argued about when they separated. The issues was sometimes important for unmarried spouses because their ability to ask for spousal support depended on whether they started a court proceeding within one year of the date of separation. | ||
Under the new ''Family Law Act'', the date of separation has become very important for married and unmarried spouses. The date of separation is the date that: | Under the new ''[[Family Law Act]]'', the date of separation has become very important for married and unmarried spouses. The date of separation is the date that: | ||
*each spouse's one-half interest in the family property crystallizes, | |||
*the spouses stop accumulating family property and begin accumulating their own personal property, | |||
*the spouses stop accruing family debt and begin accruing their own personal debt, | |||
*starts the two-year period within which unmarried spouses must begin a court proceeding for the division of property and debt, if settlement can't be reached (the two-year period for married spouses starts on the date of their divorce), | |||
*begins the two-year period within which unmarried spouses must begin a court proceeding for spousal support, if settlement can't be reached (the two-year period for married spouses starts on the date of their divorce), | |||
The chapter on the division of property and debt talks about the first four issues in more detail; the chapter on spousal support talks about the last issue. | The chapter on the division of property and debt talks about the first four issues in more detail; the chapter on spousal support talks about the last issue. | ||
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It's important to know that the Canada Revenue Agency has its own definition of separation, and requires people to have lived separate and apart for 90 days before considering them to actually be separated; once the 90-day period is over, the date of separation is the date the couple began to live separate and apart. | It's important to know that the Canada Revenue Agency has its own definition of separation, and requires people to have lived separate and apart for 90 days before considering them to actually be separated; once the 90-day period is over, the date of separation is the date the couple began to live separate and apart. | ||
===Being | ===Being separated while living together=== | ||
It is possible to separate and remain living under the same roof as your spouse. People sometimes do this when they simply cannot afford to make ends meet while maintaining separate homes or when neither spouse wants to leave the home and the children. | It is possible to separate and remain living under the same roof as your spouse. People sometimes do this when they simply cannot afford to make ends meet while maintaining separate homes or when neither spouse wants to leave the home and the children. | ||
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This ground of divorce has long since been abolished, but a claim for divorce based on simple separation for a period of at least one year may be brought instead. | This ground of divorce has long since been abolished, but a claim for divorce based on simple separation for a period of at least one year may be brought instead. | ||
===Separation and | ===Separation and children=== | ||
Under s. 39(1) of the provincial ''Family Law Act'', spouses are presumed to be guardians of their children during their relationship after they have separated. | Under s. 39(1) of the provincial ''Family Law Act'', spouses are presumed to be guardians of their children during their relationship after they have separated. | ||
Separation can be extraordinarily difficult on children. In most registries of the Provincial Court, couples are required to attend a Parenting After Separation program. This program, which is brief and free, teaches parents how to communicate with one another after separation and how to talk to their children about separation. It is an extremely useful program, and one which I encourage all separating parents take. More information about this program and other issues relating to children and separation can be found in the | Separation can be extraordinarily difficult on children. In most registries of the Provincial Court, couples are required to attend a Parenting After Separation program. This program, which is brief and free, teaches parents how to communicate with one another after separation and how to talk to their children about separation. It is an extremely useful program, and one which I encourage all separating parents take. More information about this program and other issues relating to children and separation can be found in the [[Parenting After Separation]] page. | ||
Separation is, of course, also difficult for the adults who are separating. More information about the emotional dimensions of separation can be found in the next page, | Separation is, of course, also difficult for the adults who are separating. More information about the emotional dimensions of separation can be found in the next page, [[Separating Emotionally]]. | ||
==Reconciliation== | ==Reconciliation== | ||
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For some couples, a period of separation does not sound their relationship's death knell. For some, a period of separation can be a time for rebuilding a relationship and become a healthy break that rejuvenates and revitalizes a marriage. | For some couples, a period of separation does not sound their relationship's death knell. For some, a period of separation can be a time for rebuilding a relationship and become a healthy break that rejuvenates and revitalizes a marriage. | ||
===Married | ===Married spouses=== | ||
The ''Divorce Act'' contains a number of provisions intended to discourage divorce and encourage spouses to remain together. Section 8(3)(b) of the act provides that: | The ''Divorce Act'' contains a number of provisions intended to discourage divorce and encourage spouses to remain together. Section 8(3)(b) of the act provides that: | ||
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The 90 days needn't be consecutive in order to stop the clock. If you are claiming separation as the ground of your divorce, you cannot have resumed your relationship with your spouse for a total of 90 days within the one-year period of separation. | The 90 days needn't be consecutive in order to stop the clock. If you are claiming separation as the ground of your divorce, you cannot have resumed your relationship with your spouse for a total of 90 days within the one-year period of separation. | ||
===Unmarried | ===Unmarried spouses=== | ||
Because unmarred couples don't need to get divorced, the ''Family Law Act'' has no similar provisions about separation and attempts at reconciliation, except in relation to property. Section 83(1) says this: | Because unmarred couples don't need to get divorced, the ''Family Law Act'' has no similar provisions about separation and attempts at reconciliation, except in relation to property. Section 83(1) says this: | ||
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These provisions are important because the date of separation is the date when new property and new debt stops being shared family property and family debt and starts being each spouse's separate property and debt. | These provisions are important because the date of separation is the date when new property and new debt stops being shared family property and family debt and starts being each spouse's separate property and debt. | ||
==Things to | ==Things to think about After separation== | ||
Once you've separated there a few things you may want do, change or adjust to reflect the new circumstances of your relationship with your spouse. | Once you've separated there a few things you may want do, change or adjust to reflect the new circumstances of your relationship with your spouse. | ||
===Bank | ===Bank accounts and credit cards=== | ||
You should remove your name from any joint bank accounts or credit cards. If your spouse has signing authority or debiting authority on any of your accounts or credit cards, you should consider cancelling his or her authority. | You should remove your name from any joint bank accounts or credit cards. If your spouse has signing authority or debiting authority on any of your accounts or credit cards, you should consider cancelling his or her authority. | ||
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Credit cards, loans and lines of credit can often be capped by telling the bank to make the accounts ''deposit only''. This will mean that no more withdrawals can be made and the only transactions that can take place are deposits. You could also tell the bank to reduce the credit limit to the current balance on the account. | Credit cards, loans and lines of credit can often be capped by telling the bank to make the accounts ''deposit only''. This will mean that no more withdrawals can be made and the only transactions that can take place are deposits. You could also tell the bank to reduce the credit limit to the current balance on the account. | ||
===Insurance | ===Insurance policies, pensions and RRSPs=== | ||
You may wish to change the beneficiary of your insurance policies, pensions and RRSP accounts if your spouse is the present beneficiary. If your spouse is the irrevocable beneficiary such an account, your bank or insurance company may require your spouse's consent to remove his or her name as a beneficiary. | You may wish to change the beneficiary of your insurance policies, pensions and RRSP accounts if your spouse is the present beneficiary. If your spouse is the irrevocable beneficiary such an account, your bank or insurance company may require your spouse's consent to remove his or her name as a beneficiary. | ||
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===Wills=== | ===Wills=== | ||
Separation may stop an unmarried spouse from making claims under the ''Estate Administration Act'' and the ''Wills Variation Act''. These laws allow an unmarried spouse to claim a share of the estate of his or her deceased spouse, but only if the spouses were living together at the time of the death. | Separation may stop an unmarried spouse from making claims under the ''[http://canlii.ca/t/840g Estate Administration Act]'' and the ''phttp://canlii.ca/t/84g0 Wills Variation Act']'. These laws allow an unmarried spouse to claim a share of the estate of his or her deceased spouse, but only if the spouses were living together at the time of the death. | ||
Separation has no effect on the ability of married spouses to make claims under the ''Estate Administration Act'' and the ''Wills Variation Act''. Married spouses claim a share of the estate of his or her deceased spouse as long as they are still married, whether they're separated or not. | Separation has no effect on the ability of married spouses to make claims under the ''Estate Administration Act'' and the ''Wills Variation Act''. Married spouses claim a share of the estate of his or her deceased spouse as long as they are still married, whether they're separated or not. | ||
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When married spouses are divorced, under the ''Wills Act'' a former spouse cannot act as executor of the deceased spouse's estate and any specific gifts to the former spouse are cancelled. | When married spouses are divorced, under the ''Wills Act'' a former spouse cannot act as executor of the deceased spouse's estate and any specific gifts to the former spouse are cancelled. | ||
===Powers of | ===Powers of attorney and other authorizations=== | ||
Spouses often have mutual powers of attorney, that is, each spouse may have a power of attorney which gives him or her authority over the other spouse's affairs should the other spouse become unable to manage them. If your spouse has power of attorney over your affairs, you may want to revoke the power of attorney. You do not need your spouse's agreement to cancel a power of attorney. | Spouses often have mutual powers of attorney, that is, each spouse may have a power of attorney which gives him or her authority over the other spouse's affairs should the other spouse become unable to manage them. If your spouse has power of attorney over your affairs, you may want to revoke the power of attorney. You do not need your spouse's agreement to cancel a power of attorney. | ||
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If you want to revoke a power of attorney or a similar type of authorization, you should contact a lawyer to have the proper documents drawn up. | If you want to revoke a power of attorney or a similar type of authorization, you should contact a lawyer to have the proper documents drawn up. | ||
===Medical and | ===Medical and dental insurance=== | ||
Normally, spouses and children are still covered by the other spouse's health insurance for a period of time after separation. Coverage for children usually ends once the children turn 19; coverage for married spouses will almost always ends on divorce, but coverage for unmarried spouses may end when the parties stop living together. You should contact the people who administer your insurance plan for more information as different plans have different rules about the eligibility of spouses as beneficiaries following separation. | Normally, spouses and children are still covered by the other spouse's health insurance for a period of time after separation. Coverage for children usually ends once the children turn 19; coverage for married spouses will almost always ends on divorce, but coverage for unmarried spouses may end when the parties stop living together. You should contact the people who administer your insurance plan for more information as different plans have different rules about the eligibility of spouses as beneficiaries following separation. | ||
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For most people, maintaining spousal benefits cost little or nothing. It that's the case, consider leaving your spouse's coverage in place for as long as your plan allows; it will appear rather mean-spirited if you cancel your spouse's benefits. Whatever you do, don't cancel the children's benefits! | For most people, maintaining spousal benefits cost little or nothing. It that's the case, consider leaving your spouse's coverage in place for as long as your plan allows; it will appear rather mean-spirited if you cancel your spouse's benefits. Whatever you do, don't cancel the children's benefits! | ||
===Finances and | ===Finances and assets=== | ||
When you separate, make sure you take with you or secure the following items: | When you separate, make sure you take with you or secure the following items: | ||
*your financial information, including your credit card statements, bank statements, RRSP and investment account statements, and so forth, | |||
*your MSP card and your private medical insurance card, if you have one, | |||
*your children's birth certificates, | |||
*your immigration or citizenship documents, if you are new to Canada, and | |||
*your passport and your children's passports. | |||
You may also wish to take a fair share, half or less than half, of the household property such as the children's clothing, the furniture and your personal effects. However, I would really encourage you to think twice about this and proceed with caution. Yes, the odds are quite good that half the common household property is yours, but the last thing you want to do after separation is to ramp up the tension any further; if you absolutely cannot live without the dish set, then take the dish set, but otherwise it may be best to leave the dish set at home. Nothing looks worse that the spouse who takes half the glasses, half the cutlery, half of a dining room suite and half of the living room furniture. | You may also wish to take a fair share, half or less than half, of the household property such as the children's clothing, the furniture and your personal effects. However, I would really encourage you to think twice about this and proceed with caution. Yes, the odds are quite good that half the common household property is yours, but the last thing you want to do after separation is to ramp up the tension any further; if you absolutely cannot live without the dish set, then take the dish set, but otherwise it may be best to leave the dish set at home. Nothing looks worse that the spouse who takes half the glasses, half the cutlery, half of a dining room suite and half of the living room furniture. | ||
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Now, this may seem a bit pessimistic, but you should also take a list of all of the property your spouse owns in his or her own name and of all the things the two of you own jointly. A detailed list, including balances and account numbers and serial numbers, would be ideal, but even something as simple as a list of the financial and other institutions you and your spouse deal with will do. You can collect that information by writing down the names and addresses of the people who are sending you spouse statements; you don't even have to open the envelopes. This information could prove invaluable if you wind up in an argument about who owns what or the extent of the family property and family debt. | Now, this may seem a bit pessimistic, but you should also take a list of all of the property your spouse owns in his or her own name and of all the things the two of you own jointly. A detailed list, including balances and account numbers and serial numbers, would be ideal, but even something as simple as a list of the financial and other institutions you and your spouse deal with will do. You can collect that information by writing down the names and addresses of the people who are sending you spouse statements; you don't even have to open the envelopes. This information could prove invaluable if you wind up in an argument about who owns what or the extent of the family property and family debt. | ||
==Sex and | ==Sex and new relationships after separation== | ||
A lot of readers have questions about the consequences of sex after separation. The discussion that follows is about sex with spouses, sex with people other than spouses, new relationships and how a married spouse can be in a unmarried spousal relationship with someone else while still being married. | A lot of readers have questions about the consequences of sex after separation. The discussion that follows is about sex with spouses, sex with people other than spouses, new relationships and how a married spouse can be in a unmarried spousal relationship with someone else while still being married. | ||
===Sex with | ===Sex with spouses=== | ||
There are, generally speaking, no legal consequences to having sex with your spouse after you've separated. While it might cause some emotional difficulties — such as prolonging the amount of time it takes to recover from a relationship that's broken down — there is nothing legally wrong with having sex with your spouse. Most people would say that there's nothing morally wrong with it either. | There are, generally speaking, no legal consequences to having sex with your spouse after you've separated. While it might cause some emotional difficulties — such as prolonging the amount of time it takes to recover from a relationship that's broken down — there is nothing legally wrong with having sex with your spouse. Most people would say that there's nothing morally wrong with it either. | ||
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*'''Divorces Based on Adultery:''' If you are making a claim for a divorce based on your spouse's adultery, if you have sex with your spouse afterwards you could be considered to have forgiven your spouse for the adulterous conduct. If you have forgiven your spouse, you will not be able to obtain a divorce based on his or her adultery. The same principle would probably also apply to divorce claims based on cruelty. | *'''Divorces Based on Adultery:''' If you are making a claim for a divorce based on your spouse's adultery, if you have sex with your spouse afterwards you could be considered to have forgiven your spouse for the adulterous conduct. If you have forgiven your spouse, you will not be able to obtain a divorce based on his or her adultery. The same principle would probably also apply to divorce claims based on cruelty. | ||
===Sex with | ===Sex with other people=== | ||
Just like having sex with your spouse after you've separated, there's nothing wrong with having sex with someone else after you've separated. Separation is partly defined as leaving a spouse with the intention of ending the relationship. Once you've separated, the court will consider the romantic, marriage-like aspect of the relationship to have concluded and your obligation to remain monogamous along with it. Married spouses won't be divorced until they get a court order, of course, but after separation the marital aspects of their relationships, and the attendant expectations of monogamy, will be considered to be at an end. | Just like having sex with your spouse after you've separated, there's nothing wrong with having sex with someone else after you've separated. Separation is partly defined as leaving a spouse with the intention of ending the relationship. Once you've separated, the court will consider the romantic, marriage-like aspect of the relationship to have concluded and your obligation to remain monogamous along with it. Married spouses won't be divorced until they get a court order, of course, but after separation the marital aspects of their relationships, and the attendant expectations of monogamy, will be considered to be at an end. | ||
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You cannot sue for divorce based on your own adultery. Now, if it's your spouse who has had sex with someone other than you following separation, you can use his or her adultery to get a divorce as long as you haven't already claimed a divorce for another reason like separation. | You cannot sue for divorce based on your own adultery. Now, if it's your spouse who has had sex with someone other than you following separation, you can use his or her adultery to get a divorce as long as you haven't already claimed a divorce for another reason like separation. | ||
===New | ===New relationships=== | ||
New romantic relationships are treated in exactly the same way as new sexual relationships: the courts will not normally be concerned with a new relationship unless your new partner could somehow be seen as a genuine risk to the children. | New romantic relationships are treated in exactly the same way as new sexual relationships: the courts will not normally be concerned with a new relationship unless your new partner could somehow be seen as a genuine risk to the children. | ||
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If you are the other parent, you may want to ask for an order or an agreement requiring the parent involved in the new relationship to be in that relationship for a certain amount of time — say five or six months at a minimum — before he or she introduces the children to the new person. That being said, while it is entirely reasonable to be concerned about the impact of the new relationship on the children, some caution is suggested. Before you interfere with things, make sure that your concerns about the children are well-founded and based on their interests rather than on your own emotional reaction to your ex's new relationships. | If you are the other parent, you may want to ask for an order or an agreement requiring the parent involved in the new relationship to be in that relationship for a certain amount of time — say five or six months at a minimum — before he or she introduces the children to the new person. That being said, while it is entirely reasonable to be concerned about the impact of the new relationship on the children, some caution is suggested. Before you interfere with things, make sure that your concerns about the children are well-founded and based on their interests rather than on your own emotional reaction to your ex's new relationships. | ||
===Becoming an | ===Becoming an unmarried spouse=== | ||
Someone who is separated but still married can become a spouse in unmarried relationship. Not everyone is in a rush to get a divorce once a marriage breaks down, and some people don't get around to getting a divorce until many years have passed since they separated. | Someone who is separated but still married can become a spouse in unmarried relationship. Not everyone is in a rush to get a divorce once a marriage breaks down, and some people don't get around to getting a divorce until many years have passed since they separated. | ||
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If you find that you're married and also in a new relationship which qualifies as a spousal relationship: | If you find that you're married and also in a new relationship which qualifies as a spousal relationship: | ||
*you may have an obligation to pay child support for your partner's children as a stepparent, | |||
*you will have an obligation to support any children you and your partner have had together, | |||
*you may have an obligation to pay spousal support to your partner, and | |||
*there may be family property and family debt that you might be required to share with your partner. | |||
These obligations are in addition to whatever obligations you have to your married spouse and any children from your marriage. | These obligations are in addition to whatever obligations you have to your married spouse and any children from your marriage. | ||
