Can you be separated – and continue living in the same place?

A couple can be separated and still live together if they continue to live “separate and apart” under the same roof – generally with separate areas for sleeping, and not sharing routine chores (like meals and laundry) together.   However, this type of living arrangement can sometimes be difficult to prove in court.

We tried to reconcile, but it didn’t work. Does the waiting period for divorce re-start?

If the reconciliation lasted more than 90 days (or for periods of time that add up to 90 days), then the year-long waiting period has to begin again, under the Divorce Act.

Is there a time limit for property claims?

For MARRIED spouses, there is a time limit for claims on property to be divided in a divorce.  Court action must be started and documents served and filed with the Court before the earliest of one of the following:

  • 2 years after the marriage is terminated by a Divorce Judgment
  • 6 years after the day the spouses separate (and there is no reasonable prospect they will resume cohabitation)
  • 6 months after the first spouse’s death

For COMMON LAW spouses, there is no statutory right to make a property claim.  However you can make a property claim if you can establish on the facts that you – through your work/labour or through a direct money contribution, have improved the value of certain property in the name of your common law spouse during the relationship.  This can be a complicated and difficult claim and each case depends on the particular facts that can be proven.

What will happen to my claim to our house if I move out?

Regardless of whether or not you move out, if you were married the claim to the “matrimonial home” becomes part of the overall settling of “equalization of net family properties” on divorce, which splits the couples’ pensions, assets, debts and property on an overall basis by calculating the increase in value between the date of marriage and the date of separation (except for excluded property).

Will I incur taxes in a Divorce?

If part of a divorce settlement includes property/asset transfers, then there may be tax implications – so it is important to negotiate a Separation Agreement that minimizes tax impact where possible.  Tax advice should only come from a qualified Accountant.

What will happen to the status of life insurance beneficiaries?

Separation does NOT revoke your insurance beneficiary designations.  It is recommended that clients review their policies with their lawyer to understand the implications following a separation.  It is imperative you do so once you are divorced.

Life insurance coverage however, is usually used to “secure” payment of child and spousal support in the event of a payor’s death.

What property is excluded in a divorce settlement?

The onus of proving an EXCLUSION is on the person claiming it.  Excluded property may include:

  • Gifts/inheritances and income from those if the donor/testator has expressly stated it is to be excluded from the spouse’s net family property
  • Damages/right to damages for personal injuries
  • Life insurance proceeds/rights
  • Property that spouses have agreed not to include in their net family property in a domestic contract

To qualify, the monies have to be received during the marriage and traced into an asset that exists on separation.  If the monies are put into a matrimonial home, or used to pay down a mortgage on the matrimonial home, then the Exclusion is lost.

What will happen to the status of my Will?

Neither separation nor a separation agreement voids a Will – but a Divorce does.  Also, a will is revoked on marriage.

It is important to have a signed and up-to-date Will.  If you are separated, you should seriously consider having a new Will made now, as well as Powers of Attorney.

Does a Separation Agreement get filed publicly at Court?

A separation agreement is intended to be a private contract that does not have to be filed at Court.    It may be filed with the documents required to obtain a Divorce, at which time it becomes public record.

A separation agreement does have to be signed before witnesses, after each party has received independent legal advice from different lawyers, and financial information has been properly disclosed.

If a separation agreement is later challenged, it may become a document publicly referred to in court.  This underscores the importance of having separation agreements professionally prepared, to help prevent court challenges, which are public.

Is an affair conducted over the internet “adultery”?

If there is no actual “physical” sexual relationship then the “digital” cheating is generally not considered adultery in a legal sense within the Divorce Act of Ontario.

What about my Facebook page?

Check your security settings to make sure NO ONE except those you have given permission to can access your Facebook page.  Do not put anything on your page that you don’t want your spouse or a Judge to see, read or know!

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