Separation occurs when you are in a relationship and you and/or your spouse decide that you are going to live ‘separate and apart.’ This means that you are no longer going to live together as a married or common law couple.
If one spouse leaves the marriage or common law relationship with the intention of ending the relationship or expresses a firm intention to be separated, the couple is separated, whether or not the other spouse agrees.
The concept of living ‘separate and apart’ can be confusing, but it does not mean that you and your spouse have to be physically apart in order to be considered separated. “Separate and apart’ simply means that the couple is no longer in a marriage-like relationship. The lawyers at Shariff & Associates can assist in determining a separation date or whether or not you are in fact separated in law.
It’s not unusual for separated spouses to live in different homes. On the other hand, a lot of separated spouses decide to remain in the home together due to child-care or money issues pending a resolution of their matrimonial matters.
When you and your spouse live in a home together while you are married, that home becomes the ‘matrimonial home.’ When married couples separate, and then divorce, there is a ‘presumption’, of equal sharing, meaning that each spouse will split their property, pensions, assets, debts, etc., 50/50 when they divorce. This includes the matrimonial home.
In most circumstances, you still have a claim to the matrimonial home, even if you leave it when you separate from your spouse. You should speak with a lawyer for advice, though, to make sure of your rights and obligations when you separate from your spouse. It’s a good idea to talk with a lawyer before you leave, if you can.
No. You do not have to put anything in writing, or notify the Court when you become separated from your spouse. However, putting something in writing may assist in solidifying a separation date if a spouse is unclear.
The date of separation, also known as the ‘valuation date’, is relevant to the issue of equalization of matrimonial property, the consideration of retroactive child and spousal support issues, and determines when the parties can apply for a divorce.
As required by the Divorce Act, the law that applies to divorces anywhere in Canada, you and your spouse have to be separated for one year before you can apply for divorce.
If you are applying for divorce on the grounds of of physical or mental cruelty, or adultery, circumstances may be different. You will need to speak to a lawyer for information more specific to your situation.
This is one of the first questions asked by prospective clients. Unfortunately there is no way to predict the cost of a contested divorce. The cost will vary depending on a number of factors, including but not limited to, how long it takes to reach an agreement with your spouse and whether we end up in court.
At Shariff & Associates we understand that divorce can be expensive and we make every effort to keep your costs low. There are always alternatives to court such as mediation or collaborative law, which generally have a lower cost.
An uncontested divorce occurs when you and your spouse agree on all of the outstanding issues resulting from your separation and divorce. This means that you have both agreed on absolutely everything – parenting arrangements for your children, child and spousal support issues, and how to divide your property, assets, debts and pensions. The divorce will be obtained without having to go to court, but by filing the necessary paperwork to be reviewed by the Judge and processed by the Court. When your divorce is contested, this means that you and your spouse do not agree on some or all of the outstanding issues resulting from your separation and divorce.
Yes. Whether you are executing a Separation Agreement, or proceeding as a contested divorce, you are required to complete a Financial Statement and provide financial documentation such as your complete Income Tax Returns, Notices of Assessment and in many circumstances, bank and other account statements to your spouse and if applicable to the Court. At Shariff & Associates, our skilled law clerk will be happy to assist you in preparing your Statement and collecting your financial information.
In most situations, yes. The presumption is that spouses are entitled to an equal division of assets after separation/divorce. There can, however, be situations where an unequal division is appropriate, or where a division of non-matrimonial assets is appropriate. Division of assets can become complicated, so it is best to speak with a lawyer for information specific to your situation.
Joint custody means that both parents have the right to make major decisions in the children’s lives regarding such things as religious upbringing, medical treatment, and education. Sole custody means that one parent has the right to make the final decisions in the children’s lives.
The Court’s position is that children are entitled to have as much contact as possible with each parent, provided doing so is in the child’s best interest. The basic principles that the Court uses when making decisions about parenting include, but are not limited to, the following:
- The child’s care arrangements before the separation.
- The existing parent/child relationship.
- Each party’s parenting abilities.
- Each parent’s mental, physical and emotional health.
- The schedule of both the parents and child.
- The support systems available to each parent.
- Any abuse or issues of danger to the children.
- There may be other factors as well.
The Child Support Guidelines is legislation which outlines the amount of child support based on the paying parent’s income and the number of children.
Extraordinary expenses, also known as Section 7 expenses, include medical or dental expenses not covered by a health plan, extracurricular activities or tuition expenses, etc., and child care expenses, are generally shared by the parents proportionate to their respective incomes.
The issue of spousal support, and the amounts receivable/payable, are not as clear as child support. The Court will often order spousal support where there is an entitlement to support and there is a disparity of income, in an effort to maintain an equality of lifestyles between separated spouses.
The Spousal Support Advisory Guidelines provides a range of low, middle and high, spousal support figures based on factors including, but not limited to, the duration of the parties’ marriage or cohabitation, the parties’ incomes and children and where they are residing.
Shariff & Associates will be happy to speak with you regarding spousal support as it relates to your specific circumstances as this issue can be complicated and many factors will influence it.
Each case varies and there is no hard-and-fast rule. Our objective always is to avoid court – partly because of the time and cost, and partly because no one really “wins” in a trial because it is hard on you and your children. So, we look for every possible way to reach an agreement without a trial: Sometimes this means we keep trying to negotiate contentious points; sometimes it means trying solutions such as mediation and arbitration; sometimes it means collaborative law. Speak to us about how we can help.
Shariff & Associates will keep you advised of the process at every stage. Once you have provided our office with your original marriage certificate, and signed the affidavit for Divorce, our office can apply to the Court for your Divorce Order. Once this order is issued, there is a waiting period of 31 days before we can apply for your Certificate of Divorce, the last step, after which your divorce is final.
It depends. The court cannot guarantee that your divorce will be processed in a certain amount of time.
If your divorce is uncontested, it can still take many months for your divorce to be finalized. There is a lot of background work that court staff must do on a divorce file before it goes to a judge for approval. The judge’s schedule and the availability of court staff to process divorce files will also affect the time it takes for your file to proceed. Some courts have hundreds of divorce files, and they are dealt with in the order that they are filed.