Separation and Divorce: A Complete Guide

Last updated September 5, 2023

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One-time conversations between lawyers are pricey, so imagine how fast the legal fees add up for separating spouses who can’t agree. 

But what’s the secret to parting ways peacefully? 

And how do you know when to escalate your separation to a divorce?

In this guide, we’ll walk you through everything you need to know about separation and divorce in Canada. You’ll learn the difference between these legal processes, plus what you need to do to get your life back after everything’s said and done.

What’s the difference between separation and divorce?

Divorce is final. But, with separation, the couple remains married and has the chance to reconcile their marriage. 

When a married couple splits, they have to untangle their personal, financial, and legal lives. This means they have to divide the rights and responsibilities they once shared while married—and these decisions are greatly impacted by the couple’s choice to separate or divorce. 

Let us explain.

What is separation?

Separation may be a necessary step to either reconciling or divorcing. 

In Canada, the federal Divorce Act requires a couple to be separated for at least one year before they can file for divorce. 

A separation period allows a couple to test how they function apart (financially and emotionally). Transitioning from co-dependency to independence isn’t easy. By separating first, they’ll have a better understanding if divorce is the right path for them.

Separation serves many purposes, such as allowing couples to:

• Find time and space to gain emotional clarity
• Sort out property division and financial responsibilities
• Continue to access insurance or health benefits
• Minimize disruption in their children’s lives

On the other hand, the couple might not reconcile or get divorced. Instead, they may make their separation permanent. A couple might permanently separate if their religious or cultural beliefs discourage divorce. This metaphorical “veil of separation” doesn’t completely sever their legal relationship, but it gives them a great deal of personal freedom. 

If a couple wants to end their marriage legally, they’ll need to file for divorce.

What is divorce?

Divorce is the legal process of ending a marriage. 

To qualify for a divorce, couples must establish the breakdown of their marriage by either:

1. Living separately and apart from each other for at least one year
2. Proving that one spouse committed adultery or was unbearably mentally or physically cruel

In other words, the grounds for divorce may be at-fault (e.g., one partner’s behaviour is completely intolerable) or not (i.e., no one is at fault, but their differences are irreconcilable). In most cases, couples separate before filing for divorce rather than going to trial for adultery or cruelty. 

Contested vs uncontested divorce

The legal process of divorce will be more or less complicated if it’s contested or uncontested. 

A contested divorce occurs when spouses can’t agree on key aspects such as property division, spousal support, or child custody. This can lead to high lawyer fees and the need to go to court to have a judge make decisions on their behalf. 

On the other hand, an uncontested divorce occurs when spouses agree on their divorce terms. If possible, this is the best way to save time, money, and stress.

Read more: Dispute Resolution: 3 Alternative Methods to Litigation

The pros and cons of separation and divorce

Every relationship is different and may benefit in different ways from either separation or divorce. In general, however, there are some major pros and cons of each to consider before making a final decision.

How to separate from your spouse

Emotions may be running high, but it’s crucial to set them aside and have a productive conversation about separating your personal, financial, and legal lives. 

Of course, every relationship is unique and there won’t be a one-size fits all approach to separating. But these tips might help you minimize conflict when having tough conversations:

1. Consider your living arrangements

You’ll need to be practical about separate living arrangements. For example, it might be financially possible for one spouse to leave the marital home while the other stays. Or, you might both be able to leave the property and find different places.

In contrast, sometimes couples need to live together during their separation until they have the funds and confidence to strike out on their own. This is called “living separately and apart” despite being under the same roof.

In this case, it’s essential to set clear boundaries (such as designated rooms and scheduled time in common areas). If you have children, you’ll need to talk about how this arrangement will affect their emotional well-being and your co-parenting dynamics.

2. Split your finances

Dividing financial responsibilities requires open communication, transparency, and a focus on fairness. Scheduling a time to talk may help you approach this topic calmly and with a willingness to compromise. 

It’s important to disclose all financial details (e.g., income, assets, debts, and expenses) so each person has a clear understanding of the situation. Base your decisions on actual needs and resources, rather than trying to compete with each other.

You may find a mediator or a financial advisor helpful when trying to reach a fair agreement.

3. Divide property and assets

Take the time needed to make thoughtful decisions. Rushing into property division often leads to regrets or disputes later. 

Compiling an asset list may take time, so choose a neutral and private setting where you can discuss things without interruptions. Then, try to prioritize fairness over emotional attachments. For example, you should think about the long-term impacts of property division:

• Some assets may appreciate over time
• Others may carry ongoing maintenance costs

To avoid disputes, focus on what’s best for both parties’ financial stability and future well-being. 

4. Think about child custody and visitation, if needed

Whether one parent wants sole custody or both parents want to split custody, it’s essential to focus on the child’s well-being above personal preferences. 

Your parenting plan should address daily routines, healthcare decisions, education, and communication between parents. You must also be flexible and willing to adapt as your child’s needs change.

Consider involving a family mediator or therapist to guide discussions, especially if you disagree. 

5. Document everything with a Separation Agreement

Once decisions are made, document everything in a written contract. A verbal agreement will not give you the same level of protection as a written one. 

You can use LawDepot’s Separation Agreement template to guide you through all of these topics and record your wishes. Our template helps ensure you cover all your bases during your split, so you can feel reassured about separation terms.

After at least one year of separation, you can file for divorce. However, if your separation is working out, you don’t have to file for divorce right away. There is no statute of limitations when it comes to escalating your separation to a divorce.

What are the steps to file for divorce?

The Divorce Act sets federal regulations, but superior courts have jurisdiction over divorces that occur in their province or territory. While court processes may vary, you’ll generally take the same steps to file for divorce:

1. Prepare the divorce papers (e.g., a court application form, your Separation Agreement, and other supporting documents)
2. Submit the papers to the appropriate court (online or in person)
3. Serve a copy of the divorce papers to your spouse (who must verify this with their signature)

For more details, find your jurisdiction and check out these helpful resources:

What to do after the final split

Depending on your circumstances, you may still need to interact with your spouse after you end your relationship. If this is the case, it’s best to create records of agreements and schedules to minimize disputes in the future. 

It’s also important to remember how your relationship status affects your legal rights and healthcare planning. With that in mind, update or create certain estate planning documents to ensure they reflect your current wishes.

Make a co-parenting plan

Courts will issue an official parenting agreement with terms on custody, support, etc. But there are other documents you can create to ensure a smooth and supportive transition for your children after a separation or divorce:

• Holiday and vacation schedule: Families often want to be together during certain holidays or vacations, which makes total sense. Avoid arguing over the holidays by creating a schedule in advance.
• Child travel consent form: Give permission for your minor child to travel without one or both of their legal guardians. Travel authorities often require this document to prevent international child abductions.
• Child visitation letter: Use this document when a parent visits their child outside of the normal visitation times. You can use this form to consent to an irregular visit, or you can send it as a warning letter to a non-compliant parent. 
• Emergency contacts: If one parent is unreachable, make sure there are alternate emergency contacts available. You can outline emergency contacts in Just-in-Case Instructions.
• Child Medical Consent: Use this document to give someone the legal authority to make medical decisions for your child. You can limit the types of decisions they can make and set an expiration date for their authority. 

Update your estate plans

Many estate planning documents and benefit plans include spouses as the primary beneficiary, which is why it’s important to update them after this big life change. Failing to do so may result in an ex-spouse being entitled to inherit assets or benefits that you no longer wish them to have. 

Protect your wishes and new relationships by creating or updating these important documents:

• Last Will and Testament: You’ll likely want to remove your ex as a beneficiary of your estate. 
• Power of Attorney: Plan for an uncertain future that could leave you incapacitated and unable to make decisions. Without a joint bank account or a spouse to make legal decisions, you’ll need this document to give someone else that authority.
• Health Care Directive: Also known as a Personal Directive or Advance Decision, this document gives someone the authority to consent to certain medical treatments on your behalf. 

What happens if one spouse dies before the separation or divorce is final?

If you haven’t finalized the end of your marriage, it’s likely property division and inheritance laws will treat you as a married couple despite your plans to separate. However, if beneficiaries were updated on estate planning documents, the deceased’s wishes may be respected. 

In the end, this situation will vary depending on the specific circumstances and jurisdiction. Consult a lawyer to understand how the law applies to you.