Proceeding upon separation

Separation from Bed and Board (hereinafter Separation) and Divorce procedures can be confusing terms for a couple at the time of their breakup.

Ultimately, most separations lead to divorce proceedings but not all divorces are preceded by separation proceedings.

CHOICE OF PROCEEDINGS UPON SEPARATION

At the time of the breakup of the couple, they may decide to take some time apart to reflect upon their couple hood and future. They may choose to remain under the same roof or begin living in separate homes. They may amicably decide on where the children shall reside or have recourse to mediation services through an accredited mediator in order to assist them.  They may also, if mediation and an agreement is not possible, choose to institute procedures in Separation and obtain a court judgment.

What the parties should keep in mind is that Separation does not end the marriage; it simply relieves the parties of having to reside together as husband and wife. During a separation, the parties may choose to reconcile at any time and nothing will have changed or modified for them except for having to discontinue any procedures pending at court, should that be the case for them.

Divorce on the other hand dissolves the marriage and leads to division of assets and liabilities between the parties in addition to other ancillary matters depending on the case and marriage at hand.

Mediation is the preferred solution

In the case of a Divorce, couples may also choose to turn to mediation services to try to resolve their issues in an amicable and least costly manner. However, in both Separation and Divorce case, it is essential that the parties keep in mind that the mediator is a neutral person seeking to help them reach an agreement. Therefore, it is always best to have an attorney review and discuss possible mediation agreements prior to agreeing to same. The mediator should not be the person filing for the divorce but rather simply the person who helps you reach an agreement which is fair and equitable for both parties.

In order to obtain a Separation judgment, the parties may either sign an agreement and have it ratified and deposited into the court record or they may ask the court to render a judgment if an agreement is not possible. Each province and territory has their own rules as to the process of obtaining a Separation judgment. In Quebec, the rules governing Separation from  Bed and Board are contained in the Quebec Civil Code in Chapter VI articles 493 to 515.

DIVORCE PROCEDURES IN CANADA

A Divorce in Canada is granted in accordance with the Divorce Act of Canada. In order to obtain a Divorce judgment in Canada, there are certain additional requirements such as the following:

  • you were legally married in Canada or in any other country
  • you intend to separate permanently from your spouse and there is no possibility of reconciliation; and
  • if either or both of you have lived in a Canadian province or territory for at least one year immediately before applying for a Divorce.

Canadian citizenship is not required in order to obtain a divorce, only residency in Canada is required.

Divorce rules applicable to same sex couples

There is one exception to the above requirements and that is for civil marriages between same sex couples. Canada introduced the Civil Marriage Act in 2004 which recognized that same sex couples could marry. As such, there was an influx of couples who came to Canada to benefit from the possibility of getting married.

Unfortunately, same sex marriages were possibly not recognized in their home countries or states and as such in the event of a decision to Divorce, they were faced with no options until the Civil Marriage Act.

Same sex couples who are non-residents of Canada but married in a Canadian province could apply for a divorce in that same province in the event that they fulfilled the following requirements at section 7 (1) of the Act:

The court of the province where the marriage was performed may, on application, grant the spouses a divorce if:

(a) there has been a breakdown of the marriage as established by the spouses having lived separate and apart for at least one year before the making of the application;

(b) neither spouse resides in Canada at the time the application is made; and

(c) each of the spouses is residing — and for at least one year immediately before the application is made, has resided — in a state where a divorce cannot be granted because that state does not recognize the validity of the marriage.

In addition to the above, the Civil Marriage Act provides the following at section 7 (2) of the Act:

The application may be made by both spouses jointly or by one of the  spouses with the other spouse’s consent or, in the absence of that consent, on presentation of an order from the court or a court located in the state where one of the spouses resides that declares that the other spouse

(a) is incapable of making decisions about his or her civil status because of a mental disability;

(b) is unreasonably withholding consent; or

(c) cannot be found.

The provisions of the Divorce Act do not apply to divorces granted under the Civil Marriage Act.

Consequences for the children

In both Separation matters and Divorce matters, the children are not deprived of the advantages secured to them by law.

The rights and duties of fathers and mothers towards their children are unaffected by Separation from Bed and Board and Divorce.

For further information or clarification about Separations and Divorces, please do not hesitate to contact our office.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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