Commonly Asked Questions

What is family law?

Family law is mostly about the rights and responsibilities of spouses, parents, and children.
If you marry someone or live together as a couple, the law gives you certain rights and responsibilities towards each other, both while you are together and if your relationship ends. In Canada, same-sex couples and opposite-sex couples have the same rights to marry, live together common-law, and have or adopt children.
If you have children, you also have legal responsibilities and rights towards them, whether or not they live with you, and whether or not you live with or are married to their other parent.
Usually, family law issues come up when people decide to separate or divorce. But even if you never expect to separate or divorce, knowing this information now could help you avoid problems later.

What is legal separation?

There really is no such thing as filing for “legal separation” in Canada. You are legally separated as soon as you and your spouse are ‘living separate and apart’. However, the term “legal separation” is commonly used to describe the contract that is created between two spouses at the time of their separation.

What are the most common family law issues that arise on separation?

The most common concerns in family law include the following:

Child custody, access, and parenting plans

Parents who are separating have to arrange where their children will live and how much time they will spend with each parent (“access”), and who will make major decisions about the children’s upbringing (“custody”). All together, these arrangements are called “parenting plans”.
When the parents cannot agree on these things, a judge may have to decide what arrangement would be in the child’s best interests.

Child support

All parents are responsible for supporting their children as long as the children are dependent. “Dependent” usually means at least until the child turns 18 and sometimes longer. In most cases, if a child lives most of the time with one parent, the other parent has to help with the expenses by paying child support. The amount of the child support usually depends on the income of the parent who is paying support and the number of children.

Spousal support

A spouse is someone you are married to or live within a common-law relationship (marriage-like). The words partner, wife, and husband are sometimes used to refer to spouses. Spouses may have a responsibility to support each other financially. If they separate, the spouse with the higher income may have to continue supporting the other. How long support must be paid depends on the situation; it may be for just a few months or for many years.

Property division

When a married couple separates, they must share any increase in their money or property that happened during the marriage. They also each have an equal right to continue to live in the home they were living in together. It does not matter which spouse’s name is on the deed or the lease.
These rules do not apply to common-law (unmarried) couples. If a common-law couple separates, each spouse usually keeps his or her own money and property and they divide things that they own together. A common-law spouse may sometimes be able to claim a share of the other spouse’s property or money, but this is not an automatic right as it is with legally married spouses.

Do couples who live together have the same rights as couples who marry?

Living together in a marriage-like relationship, but without getting married, is often called “cohabitation” or “living common-law”.
The law mostly treats common-law couples the same as married couples, except when it comes to property division and inheritance.
In Canada, a child’s legal rights and status are not affected by whether their parents were married, living together, or not in a relationship at all.
In Ontario, there is no formal or legal step to becoming common-law spouses. In Ontario family law you are considered common-law spouses if:

  • you live together and have a child together, or
  • you have been living together for at least three years whether or not you have a child together.

Other Ontario laws may use different definitions of “spouse”. And most federal laws and programs consider you common-law spouses after you have lived together for one year, whether or not you have a child together. (Note that federal laws use the term “partner” instead.)
There is also no formal or legal step needed to end a common-law relationship. If you stop living together as a couple, you are no longer common-law spouses. But if this happens, you may want to have a separation agreement or court order to deal with issues like support, property, and parenting plans.

What is a Separation Agreement?

A separation agreement is a legally binding contract created between two spouses, at the time of their separation. This contract sets out each party’s rights and obligations on issues such as child custody/access, child/spousal support, property division and debts. The law leaves the decision about having a written separation agreement up to each individual couple. However, it is always strongly recommended that couples have a separation agreement as it can be very hard to prove any verbal agreements made by a couple, in a court of law. Ideally, it is best to have a separation agreement drafted by an experienced family law lawyer as there are legal requirements in having a valid and enforceable separation agreement.

Do I have to be separated for one year to apply for my divorce?

The simple answer is NO. In Canada, there is only one valid reason for a divorce and that is “marriage break down”. Currently, there are three acceptable grounds which are used to prove this breakdown. They are adultery, abuse/cruelty, and separation. If you are relying on separation as a ground for the divorce, the period of separation must not be less than one full year has passed where you and your spouse have lived separate and apart. You can, however, live separate and apart under the same roof. To understand more about this you should speak with a family law lawyer. You can begin the court application process for a divorce the day that you are separated, but the courts will not grant you your divorce until the full year has passed.