FAQ

When is a person "separated" for family law purpose? The "date of separation" has a different meaning depending on why a person asks the question. In other words, you may have acquired the status of a "separated person" for family law purposes but not for income taxes, insurance or survivor’s benefits purposes. Each legislation has its own definition of what a "separated" person is, but for family law purposes (in Ontario), a person is separated as soon as one of the spouses (sometimes it is a mutual decision) indicates to the other that the relationship is over and that there is no possibility of reconciliation. The "date of separation" is a very important date in family law because it determines the date at which your debts and assets will be valued for the purpose of dividing your family property, from when the spouses’ support obligations will commence, and when you will be able to ask for a divorce. For many, the date of separation is very clear: it is the day that one spouse leaves the family residence, or moves to a different bedroom. In other cases, it is less obvious; one of the spouses may continue to entertain the hope that the relationship will resume and believes (wrongly) that the other spouse feels the same way. When the parties disagree on the date of their separation, a good hard look at all the facts will be necessary to achieve resolution on that point.

Clients often have this misconception that getting a divorce is the most important part of the process following a separation. It is not. Obtaining a divorce order is really just a legal formality that will confirm that you are no longer legally married. Resolving all matters arising from your marriage and separation is what can take a long time and be difficult, emotionally and financially. Not every couple is able to resolve how they will care for their children, how they will divide their assets or how they will support one another financially in the future immediately following their separation. Achieving final resolution on all these points and signing a final Separation Agreement is what will often require lengthy negotiations. Finalizing the terms of a separation agreement through mediation, collaborative law, lawyer-to-lawyer negotiation or a court process is your first step. It is only when this is completed that you can concern yourself with getting the divorce. At that point, obtaining a divorce order is really just a "paper process" and its only effect will be to confirm that the spouses are no longer be married (they are divorced), thus allowing them to remarry. A divorce order cannot be made by a judge until the spouses have been separated for at least one year and, if all matters have been settled by way of a separation agreement, you will be entitled to obtain a divorce whether or not your ex- spouse consents to it.

In Ontario, child support does not necessarily end when a child turns 18 years of age. An adult child continues to be entitled to support if the child is enrolled in a post-secondary education program on a full-time basis or if the child is unable to support him/herself as a result of a disability or an illness. While child support may continue after a child turns 18, the way in which support is calculated may vary from the way it is calculated when a child is a minor (in that case, the amount is determined by the Tables of the Child Support Guidelines, based solely on the payer’s or the parent’s income). When an adult child continues to live at home while pursuing a post-secondary degree, normally the child support will continue to be based on the Child Support Guidelines Tables the same way as when the children was a minor. However, the adult child will have a positive obligation to contribute to his or her post-secondary education expenses (such as tuition, books and transportation) to the best of his/her ability by way of student loans, bursaries or part-time employment. However, if an adult child moves away from home to attend school, the child support will be calculated very differently, taking into account the child’s needs outside of the parent’s home, the reduced costs to the recipient parent when the child is living away from home, the child’s ability/obligation to contribute to his or her living and school expenses, and the parents’ ability to pay. Parents do not normally have an obligation to support an adult child after he/she has obtained one post-secondary degree, but there are exceptions to that general rule.