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How to Understand Your Rights and Obligations for a Legal Separation

The dissolution of a marriage or the ending of a partnership is often marked by emotional stress and worry.  A myriad of decisions need to be made regarding finances, living arrangements, custody (if children are involved), lawyers and divorce or separation proceedings – all while both parties try to remain emotionally intact.  Separation and divorce deeply affects everyone involved; in fact, divorce is often cited as one of life’s most stressful events.

The Divorce Act of Canada is a federal law; however each province has its own process in place for divorce. Ontario divorce laws remain complex and are fundamentally only applicable to married spouses. What happens when a relationship ends, but the partnership is not considered a marriage?

In 2012, Statistics Canada reported that over 3 million people in Canada were in a common law relationship, a number that grows annually. Therefore, it is important to understand how separation agreements vary between marriages and common law partnerships.  Individuals going through a common law separation do not have the same rights as married couples.  In terms of divorce, couples that are married in Canada must legally divide all assets – what they own and owe, including all property and debts, and divide it equally. This is not the case in a common law relationship.

What is a Common Law Relationship?

In Ontario, a relationship is deemed common law when two people have lived together for three consecutive years or they are the parents of a child.  The relationship is akin to marriage but without the legal documents or ceremony.  Additionally, if there is a period of time during which the couple lived apart this can impact whether the relationship is considered common law.

Difference in Proceedings of a Common Law Separation: The most significant difference between divorce and common law separation is the way that property, debt and assets are divided. In a common law separation:

  • There is no equalization payment upon separation, whereby the parties leave the relationship with an equal portion of the asset base.  Neither party has a right to an equal division of property; however, a common law partner may make a claim if he or she feels they significantly contributed to the other’s asset base.  For example, if renovations have been made to the house and the expenses were shared, a common law partner can make a property claim.
  • The date of separation residence in possession of the person whose name is on the deed and, again, contribution is a determining factor, unless the home was purchased and both parties’ names are on a contract.
  • All debt belongs to its respective owners and is not consolidated upon separation.

Some things remain the same with separation and divorce regardless of the status of the relationship. Child support: Each parent is required to support a child that is under the age of 18 and (potentially) children over 18 who are enrolled in post-secondary education.  Both married and unmarried couples can split their Canada Pension Plan (CCP) credits.  These credits are added together for the period of time the relationship was intact, and then divided equally, although a time limit is exists. Divorce is only applicable to married spouses.  

Couples that are going through common law separation may have other issues that need to be resolved, such as, child custody and access, support and the division of joint assets. There are many options available for married and common law separation. Partners can speak to each other directly, use a mediated divorce approach, use lawyers to help negotiate details of settlement, use the collaborative family law approach, or go to court.

Contact a reputable divorce lawyer at Epstein & Associates so we can help guide and support you through the process.  A legal representative can inform you of your rights and obligations as well as the consequences of decisions regardless of whether you choose to go to court.  We pride ourselves on being able to choose the best option for every individual circumstance.