Separation vs. Divorce: What’s the Difference?
What is the difference between a separation and a divorce? This is one of the most common questions we receive when clients call in to book an initial consultation. In Alberta, there are three grounds for divorce:
1) You and your spouse have been separated for a minimum of one year,
2) You or your spouse committed adultery, or
3) You are your spouse treated the other with mental or physical cruelty.
The most common ground for filing for divorce in Alberta is separating for a minimum of one year. As family and divorce lawyers in Calgary, our role in separation and divorce is to assist clients with understanding their spousal rights, parental rights, guardianship, settling disputes, and more.
What Are the Legal Implications of a Separation in Canada?
In Alberta, there are no official Court proceedings needed to make a separation legal. This is different from the United States and what you may have seen on television. In Canada, there is no trial separation vs. legal separation. Couples who choose to separate can do so at their will without needing to involve the Court.
However, if you do not file for divorce, you and your spouse will remain legally married. During a separation, there is still a legal obligation to support each other and any children of the marriage. If you wish to outline terms of the separation to include division of property, child support, spousal support, parenting, child custody etc., you can sign a Separation Agreement.
What Does it Mean to be Separated For a Minimum of 1 Year?
A separation means you and your spouse are living separately and apart but are still legally married. As such, you have separate finances, you do not socialize together, nor do you communicate about your personal lives (with the exception of co-parenting matters).
In some circumstances, living in separate homes is not financially possible and couples must live separately and apart within the same home. In this unique situation, couples must prove their intent to live independently from each other.
This is often shown by:
- Eating alone (not as a family)
- Presenting themselves as separate to friends and family
- Ending any physical and emotional intimacy
- Performing their own household chores
The Divorce Act considers that couples may try to work things out during this separation period. This won’t stop the clock from running on the 1-year time frame. You’re permitted to resume living together and sharing your lives for up to 90 days without delaying your divorce in the event things don’t work out.
What is a Separation Agreement?
A Separation Agreement is a binding legal document encompassing all the issues you and your spouse need to address if you continue to live separately and apart. A Separation Agreement does not end your marriage but merely sets out your rights and obligations as two parties living apart.
A Separation Agreement should include information such as:
- How you intend to divide the matrimonial property
- Support obligations for spouses and children
- How you intend to educate your children (including religious upbringings)
- A parenting plan including division of custody,
- And any other matters you and your spouse deem necessary
We recommend including as many foreseeable issues in the Separation Agreement as possible to help avoid any bumps down the road.
Recent Changes to the Divorce Act in Canada
Changes to the Divorce Act came into effect on March 1, 2021, and apply to anyone getting a divorce or considering a divorce, including those whose case started before the changes came into effect. Amendments include:
Best interests of the child – The changes to the Divorce Act elevate the best interests of the child, taking into account the:
- Child’s needs according to their age
- Child’s relationship with each parent
- Child’s preferences based on their maturity level
- Parent’s willingness to have a relationship with the child
- Parent’s history of caring for the child
- History of family violence
- Parent’s willingness and ability to co-parent
- Child’s heritage
Legal terminology – To minimize disputes and confusion, the old terms “access” and “custody” have been replaced with “parenting time” and “decision-making responsibility”. This change helps parents understand their rights and responsibilities concerning guardianship during the divorce process.
Family violence – The previous Divorce Act did not contain any language referring to family violence. The amendments now define family violence as “physical abuse, sexual abuse, psychological abuse, emotional abuse, financial abuse, harassment, and threats of harm to persons, pets, and property.” Under the new Divorce act, judges must consider family violence during divorce proceedings.
Alternative dispute resolution – The amendments encourage couples to avoid litigation whenever possible and instead turn to alternative dispute resolutions such as mediation and arbitration. At Jones Divorce & Family Law, our divorce lawyers have extensive experience in mediation and arbitration, which is typically a quicker and less expensive way to resolve problems compared to waiting for a court to come to a decision.
Relocation – Relocation refers to a person with parenting time and decision-making responsibility wanting to move away with or without their child. The amendments to the Divorce Act state that when a parent plans to relocate:
- They must provide 60 days’ written notice
- The notice must be given to anyone with parenting time, decision-making responsibility, or contact
- A person with parenting time or decision-making responsibility has 30 days to object to the relocation
- The objection must be a written notice or a court application
Someone with contact cannot object to a person’s plan to relocate. The only person who can object is one who is granted parenting time or decision-making responsibility. If there is family violence, notice may not be needed.
Learn more about the Divorce Act changes in our blog.
If you are considering separation and wish to have a Separation Agreement drawn up, we HIGHLY recommend consulting a divorce lawyer. A lawyer will ensure your Agreement is legally binding, includes all relevant clauses, and will advocate for fairness on your behalf. Connect with us to set up an initial consultation today.
Disclaimer: The content provided in the blog posts of Jones Divorce & Family Law is general information and should not be considered legal advice. Please contact a lawyer for legal advice tailored to your specific situation. All articles are current as of their original publication date.