Take the time to make a plan when ending your marriage

By Tony Poland, LegalMatters Staff • The decision to end a marriage can be difficult so carefully considering what comes next can make a painful transition a little less stressful, says Toronto family lawyer A. Julia P. Tremain.

Tremain, a partner with Waddell Phillips Professional Corporation, says separation and divorce can be complicated and confusing.

“Many people do not quite understand the difference between the two,” she tells LegalMattersCanada.ca. “A divorce is the legal severing of the marriage. The marriage is over and no longer exists. The separation agreement sets out all the terms of your separation and will deal with your division of property. It will deal with any support to be paid whether it’s spousal or child and it would deal with a parenting plan. 

“Frequently, people will tell me they want to get divorced and that is certainly a part of the process. But that usually is the last part. It is generally the separation agreement that everybody works on first.”

Tremain says there are common misconceptions when it comes to separation and divorce.

It can take time to figure out the issues

“People often do not realize that being married is different than living common law in Ontario. You have different property rights,” she says.  “As well, many couples want to get it all done quickly, but it’s not a quick process. It can take some time to figure out some of the issues.”

A lot can depend on the length of the marriage, Tremain says.

“There’s a huge difference between spouses who have been together decades and a young couple who have been married a short period of time and have no children and no assets to speak of,” she says. “Both still should get legal advice. But if they really have little to negotiate, it’s a little bit more straightforward. 

“If you have issues of support, if there is property that should be equalized, it is in your best interests to seek advice because you don’t want to waive any rights that you may have.”

Ending a marriage is a big step and the next steps you take are important, Tremain says, adding a separation agreement will help define your rights.

This agreement is a legally binding contract dealing with such issues as child access and responsibility, division of property, responsibility for debt and child and spousal support, she says.

Verbal deal can be difficult to uphold in court

While the agreement is not necessary for separation, it is recommended since a verbal deal can be difficult to uphold in court if one spouse decides not to honour the terms, Tremain explains.

She says to be legally separated you must prove to the court that you are living “separate and apart” from your spouse. 

It is possible to live in the same home and be considered separated as long as you are not seen as a couple, Tremain says. For example, if you make meals and eat together, share a bed or socialize together you might still be considered a couple in the eyes of the law.

• Even the best relationships benefit from a domestic contract
• COVID vaccination decision could find parents battling in court
• Province is moving forward to simplify ‘outdated’ family law system

She says it is important to establish the date of separation since it will be used for the valuation of assets to be divided by the couple.

Tremain says the date can be a contentious issue when it comes to accessing the value of property. 

“Sometimes it’s more advantageous to one party for the date of separation to be earlier or later depending on whether an asset has gone up or down in value,” she says. “If you really cannot agree on it then it would be up to the court to establish a date of separation. 

“A judge will look at different things, such as how the parties held themselves out to the world. Did friends and family think they were separated? Did they start dividing their finances or were they still keeping joint accounts?” Tremain adds.

The date of separation is important

The date of separation is also important if you are planning on filing for divorce, she says, since you must be legally separated for one year unless one person is filing for divorce on the grounds of cruelty or adultery.

Tremain says a couple does not have to get divorced if they separate. A divorce is only necessary if one or both decide to remarry.

“People can stay separated forever, but there are limitations periods people should be aware of in order to make claims,” she says. “For example, a property claim must be made within six years of the separation.”

Couples considering a split need to do some planning, Tremain says.

“They should be gathering together all of their financial information. They need to collect information regarding their assets and debt, so they need bank account and credit card statements and information about any Investments,” she says. “It takes time, certainly, to gather the financial information.”

Couples need a plan for dividing property

Tremain says the couple will need to determine who pays for any debts and how the values of pensions or RRSPs will be split. They will also need a plan for property such as automobiles, furniture and other personal items, she says.

Tremain says couples should avoid making rash decisions when it comes to separation and divorce.

“I would recommend they think very carefully about it, If they are serious, make sure to keep things calm because often it’s a very tense time. Avoid getting embroiled in too much conflict because that can just backfire,” Tremain says. “And if they are living in a potentially violent home, they need to find a safe environment and stay safe.

“Start thinking about where you are going to live, who your children are going to live with and where they will go to school. Who makes parenting decisions? Then think how you are going to tell your children.”

More from Waddell Phillips Professional Corporation:

Baggage fee lawsuit pushes the envelope in consumer class action