Skip to content

Separation or Divorce

At Pace Family Law, we have extensive knowledge and experience in separation and divorce matters. Our separation and divorce lawyers are committed to protecting your legal rights, and getting you the most just and fair outcome possible.  Whatever your needs are we encourage you to contact us for a free, no obligation, confidential 30 minute in person or remote video consultation to discuss your matter.  We are here to help.

Divorce or Separation?

One of the most common questions that people ask is: “What’s the difference between a divorce and a separation?”, or “When am I legally separated, and when am I divorced?”

While a divorce requires a court order; a separation does not.  In fact, you don’t ever need to go to court in order to be separated.  For the purpose of family law, parties are deemed to be “separated” when they are living “separate and apart”.  This usually means that the parties are physically apart and are living in different homes, however, this is not always the case.

divorce or separation

Reasons the Court will deny you a divorce

As defined in the Divorce Act, collusion is any agreement or conspiracy to which a divorce applicant is either directly or indirectly affiliated in by subverting the administration of justice. This includes any agreement, understanding, or arrangement to fabricate or suppress evidence or to deceive the court, but does not include an agreement that provides for separation between the two parties such as financial support, property division, nor the division of custody.

Collusion occurs when a couple agrees to lie about their true date of separation in order to secure a divorce decision sooner.

When one spouse encourages the other to commit a marriage offence in order to establish grounds for divorce, this is known as connivance. This prohibition only applies to circumstances where adultery or cruelty are being considered as grounds for divorce. This limitation is discretionary, meaning the court can still issue a divorce despite condonation if it is in the public’s best interests.

Like connivance, condonation also only applies to divorces based on adultery and cruelty. When a spouse who is aware of the offence forgives the offender, and remains or restarts cohabitation with the guilty spouse, this is known as condonation. Cohabitation, on the other hand, is insufficient evidence of condonation. Instead, it must be accompanied by an actual intention on the part of the victimized spouse to forgive and reconcile.

If a spouse has previously approved an act of adultery or cruelty, that conduct cannot be resurrected and used as a basis for divorce in the future. This limitation is also discretionary, meaning the court can choose to issue a divorce despite condonation if it is in the public’s best interests.

If children are involved, and the couple has not made acceptable arrangements for their children’s support, the court may put the divorce on hold until such arrangements are established.

This threshold is discretionary since, before granting the divorce, the court must be convinced that the agreements made are reasonable. The court may find that the arrangements are reasonable for the support of the children by considering the guidelines amount, written agreements between the spouses, and any special circumstances surrounding the case that may or may not make the arrangements reasonable for the support of the children.

As a result, after the spouses have filed a divorce petition based on the dissolution of their marriage, acceptable arrangements for the children’s support have been arranged, and there is no proof that they conspired, connived, or condoned, the court may award a divorce dissolving the marriage.

When a divorce is granted, it takes effect on the 31st day following the day on which the divorce ruling is given. Unless there are exceptional circumstances that need the divorce to take effect immediately, this rule will apply. However, the parties must agree not to appeal the verdict before the court can do so. If the parties instead decide to appeal the ruling, the divorce will take effect on the day the appeal procedure is completed.

A divorce ruling can be appealed within 31 days. Once the effective date has passed, either spouse should file for a Certificate of Divorce, which certifies that a divorce has been granted and the marriage has been dissolved. This document serves as conclusive evidence of the legal divorce ruling.

foreign divorces

FOREIGN DIVORCES

A divorce may be recognized under the Divorce Act if either former spouse lived in the country for at least a year previous to the start of the divorce proceedings. Other parts of the statute may allow for the recognition of a foreign divorce.