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When are spouses considered separated?

Spouses will be considered “separated” under the Ontario Family Law Act when they live separate and apart and there is no reasonable prospect that they will resume cohabitation.

Can we be separated and still physically live in the same house?

Yes. You can still physically live in the same house as long as you are living “separate and apart”, that is as long as you are both living independent lives while sharing common accommodation. To determine whether you are living “separate and apart”, no single factor is determinative. The court will look at the particular circumstances and way of life of the spouses to determine whether they are living “separate and apart” such as:

  • Whether you are occupying separate bedrooms;
  • Whether you have sexual relations together;
  • The degree of communication between you and your spouse and whether you discuss family problems together;
  • Whether one party is providing domestic services for the other;
  • Whether you eat your meals together;
  • Whether you attend social activities together.

What is the difference between a separation and a divorce?

Separation: Upon separation, the spouses will want to enter into a separation agreement or obtain an order that will settle the custody arrangement for the children, child support, spousal support and equalization of the net family property. The spouses do not have to get a divorce in order to enter into a separation agreement or obtain an order dealing with those issues and they can stay separated without getting a divorce forever if they so choose. Separated spouses that were previously married, however, will not be allowed to remarry until divorced.

Divorce: A divorce legally ends the marriage and allows the ex-spouses to remarry. There is only one ground for divorce, which is marriage breakdown. This is normally established by showing that the spouses have lived separate and apart for at least one year.

What will the court look at when deciding to grant a divorce?

It is the duty of the court to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage, taking into consideration the Federal Child Support Guidelines. If no arrangement is in place or if the arrangement is inadequate, the court will stay the granting of the divorce until such arrangements are made.

The court also has a duty to satisfy itself that there is no possibility of the reconciliation of the spouses.

After getting a divorce, how soon can I remarry?

A divorce takes effect on the 31st day after the divorce judgment is issued.

What if my spouse does not want to agree to a divorce? Can I get a divorce without my spouse’s consent?

Yes. The law does not require the consent of both spouses to grant a divorce. The court can grant a divorce on application by either spouse.

What other consideration should I be aware of when deciding whether I should get a divorce or simply a separation?

Some people may have private medical coverage, pension plans or other plans that may be affected by a divorce. For example, if you benefit from medical and dental insurance coverage under your spouse’s insurance plan, the plan may continue to cover your medical and dental expenses after a separation, but this coverage may end when you obtain a divorce. If your spouse has a pension plan, a divorce may terminate eligibility to survivor benefits. You should consult a lawyer to determine if a divorce may affect your interests to such coverage.

Another important consideration pertains to your estate. If you are not divorced and you pass away without a will, part of your estate may go to your married spouse.

If I get a divorce, does it mean that my ex-spouse can no longer vary the terms of our separation?

No. Getting a divorce does not bar changes to the agreement or court order in place. The separation agreement or court order may, however, contain terms that limit how the terms of your separation may be varied. Generally, provisions regarding custody and child support are continually variable if there is a change in circumstances. Spousal support may also be varied under the terms of the separation agreement or in the case of a court order if there has been a material change of circumstances.

*Information provided above does not constitute legal advice and is only applicable to those whose situations are covered by Ontario Family Law, as other provinces have their own laws governing these issues.

Author: Julie Barrette, © Nelligan O’Brien Payne LLP 2011

Click here for more information on family law issues or click here to view our blog.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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