Ontario Family Mediation Service
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How do you become legally separated?
How Family Mediation Helps
Under Ontario’s Family Law Act, the definition of a separation is when spouses live separate and apart with no reasonable prospect of resuming cohabitation, this does not require any form of document or court order. What is required is that an objective third party would say that the spouses are no longer living together as spouses, but are living their lives as separate individuals and the relationship has ended. Being separated does not depend on whether spouses are physically separated or not. Spouses can live separate and apart while physically live in the same household, for instance if neither spouse can afford to move out or don’t feel comfortable moving out without a separation agreement. When determining if a couple has separated The Court will look at factors such as:
- Whether the spouses occupy separate bedrooms
- Whether the spouses continue to have sexual relations
- Whether the spouses present themselves as a couple to the community
- The degree and quality of communication between the spouses
- Whether the spouses eat meals together as a family
- Whether the spouses engage in joint social activities
- Arrangements regarding traditionally shared expenses
Unlike divorce, both married and non-married spouses can legally separate. Once spouses are separated, they can make claims for spousal support and child support, if children are involved. However, only married couples can make a claim for an equalization of Net Family Properties. When spouses separate, it is recommended that they settle their affairs through a Separation Agreement or Court Order. This will allow spouses a degree of certainty and predictability in planning their affairs on a go-forward basis.
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Difference Between Separation and Divorce
How Mediation Assists With Divorce
Simply speaking, the difference between separation and divorce is that with a divorce the court officially ends your marriage. This means that you may marry again, if you wish; therefore, only legally married couples can divorce.
Being separated means you have made the decision to live apart from one another – sometimes within the same home – because the relationship has broken down. Both married couples and common law couples can be considered “separated”.
You do not need to go through a legal process or get official documentation to legally separate. Although, if you are married and wish to divorce, you need to go through an official process, in order for the courts to grant you with a divorce; assuming that are the court requirements are met.
With that being said, when couples separate there are typically looking to discuss important issues such as:
- Property Division
- Co-parenting (residency for the children, custody, schedule etc.)
- Spousal and Child Support Calculations
- Life Insurance
- Medical and Dental Benefits
During the mediation process, these are some of the topics we discuss with spouses. We help guide the couple towards making decisions they both feel comfortable with. When decisions have been made, the terms get written into a legal Separation Agreement.
A Separation Agreement is a legally binding document, which outlines the terms of your separation. This is a very important document to properly create and posses. Although, simply having a Separation Agreement does not legally end your marriage. Spouses must legally apply for a divorce, in order to do that.
In Ontario, you will be legally divorced once you have applied for a divorce decree or an uncontested divorce. This is an application to legally terminate your marriage, once both parties have successfully completed and signed a Separation Agreement or have received a court order from a judge. So yes, you must be legally separated before a divorce is approved. Therefore, there is a difference between legal separation and divorce. Although, it is important to note that a divorce decree or an uncontested divorce does not protect the personal interest or assets of each party involved; these terms must be dealt with prior to filing for a divorce decree or an uncontested divorce.
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Divorce without a lawyer
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When living in Ontario, it is important to note that you are able to have a divorce without a lawyer. Any individual, regardless of their qualifications, is entitled to create their own homemade Separation Agreement by seeking a professional family mediator to assist them with creating a separation agreement. Hence, if two parties agree to separate, a mutual Separation Agreement between a husband and wife can be created and signed within the home environment. However, it is crucial to obtain a witness to sign the homemade Separation Agreement as well. When deciding to divorce without a lawyer and create and sign a homemade Separation Agreement without a lawyer, both parties must understand the legal and future risks that are involved. When writing a homemade Separation Agreement, it can be challenging to create one that is legally binding and enforceable in the foreseeable years. A future obstacle can be an ex-partner deciding to revisit the homemade Separation Agreement, which can then be legally disposable. This would be a result of the agreement not being properly and legally constructed from the beginning. Ultimately, if a Separation Agreement is not prepared properly with a full Financial Disclosure, proper signing by both parties, and evidence of legal advice, it will not be beneficial in the future.
It needs to be noted that Independent Legal Advice is something that is always beneficial, while creating your own Separation Agreement with the help of a family mediator. Paying a lawyer for a couple hours of their time is much less expensive than retaining them for their services and having them represent you throughout your separation and divorce. A family mediator cannot give you any legal advice or give you their opinion on what is in your best interest as an individual. The mediator is a mutual third party to provide you with all the information you need to make informed and educated decisions, regarding the separation. You can get divorced without a lawyer, but if you feel uncertain about what is in your best interest their advice is always positive, whether you decide to listen to it or not. Their job is to tell you what is in your best interest and sometimes that may not line up with what is best for your family.
When considering deciding upon the Family Court Process, as opposed to the Mediation Process, it is important to explore the diverse range of available options. If the Mediation Process seems most fitting for your current situation that does not mean that professional legal advice cannot be attained during the process for additional legal support.
ILA, otherwise known as Independent Legal Advice, is a process which enables an individual to receive individualized legal advice from a certified lawyer. This service is different than simply hiring a lawyer to represent your case. An individual seeking legal advice or possible suggestions on how to proceed with their case should consider ILA. The process required an individual to pay a lawyer for an hour or two of their time, in exchange for their professional expertise and legal advice. The lawyer will be able to provide specific insights and recommendations on how to successfully move forward, once they have reviewed the current status of the mediation process. Once the mediation documents have been reviewed, the lawyer will provide their legal opinion on how to move forward in the best interest of the individual. ILA is beneficial for various reasons, especially when an individual is unsure of the route that is best suited for their current needs.
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Legal Separation Agreement
Vitual Assistance Available
In Ontario, a Legal Separation Agreement is one of the most crucial documents during the divorce process and a legal separation requirement. A Legal Separation Agreement is an ongoing legal contract between the two parties involved in the marital separation. The legal Separation Agreement will indicate how the two parties will best move forward in the future and ensure any anticipated issues are resolved. During the process of creating and signing a Legal Separation Agreement, both parties must be aware of their legal rights, responsibilities, and obligations. Therefore, it is extremely important that this document is properly created by keeping the laws of Ontario in mind, as it will impact your life and your children’s lives in the upcoming years. It will determine many future terms including; the relationship between you and your ex-spouse, how your children will be raised, your financial status, your taxes, your ability to take out loans and mortgages, when you’re able to re-marry, and etc. Remember, the decisions you make now, will impact your realities in the future. In the process of constructing a legal Separation Agreement, it is vital to negotiate future financial and parenting plans, prior to signing this legal contract. These two aspects to the divorce process can be stressful and time consuming; however, it is necessary in determining the success of yourself and your family in the future years to come.
When found desiring a separation, you and your spouse must consider a settlement arrangement, as well as a legal Separation Agreement. Fortunately, it is not necessary to attend court to settle arrangements and properly complete a legal Separation Agreement. Although, it is important to note that signing a marriage Separation Agreement does not mean you are legally divorced and have officially ended your marriage. So, how do you become legally separated? In Ontario, you will be legally divorced once you have applied for a divorce decree or an uncontested divorce. This is an application to legally terminate your marriage, once both parties have successfully completed and signed a Separation Agreement or have received a court order from a judge. So yes, you must be legally separated before a divorce is approved. Therefore, there is a difference between legal separation and divorce. Although, it is important to note that a divorce decree or an uncontested divorce does not protect the personal interest or assets of each party involved; these terms must be dealt with prior to filing for a divorce decree or an uncontested divorce.
In Ontario, it is important to consider and successfully incorporate these influential factors when writing a legal Separation Agreement:
- A full financial disclosure
- Co-constructed Parenting Arrangements
- Child Support commitments
- Spousal Support commitments
- A valuation of existing pensions
- A formal division of assets
- Tax obligations
- Equal separation of the Matrimonial Home
- A Future Dispute Resolution Clause
- Indication of any Independent Legal Advice
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Filing a Legal Separation
An Amicable Process
In order to be legally separated, you do not need to file a legal separation. Filing a legal separation really refers to filing for a divorce. You do not need to go through a legal process or get official documentation to legally separate. Although, if you are married and wish to divorce, you need to go through an official process, in order for the courts to grant you with a divorce; assuming that are the court requirements are met. Therefore, filing a legal separation is something that is a misconception and probably refers to creating a legal Separation Agreement or filing for a divorce.
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Cost of Legal Separation
Help That’s Close To Home
The cost of a legal separation depends on what route the individuals decide to take, mediation is a cheaper dispute resolution alternative to litigation but does still come with a cost. Legal fees during a separation can be anywhere from $5,000.00 per person up to hundreds of thousands of dollars depending on the level of conflict and the property involved. The cost of a legal separation done through mediation usually will cost a person anywhere between $1,800.00 to $3,500.00 all in.
There are also often other 3rd parties that can be helpful when separating that do add to the cost of the legal separation such as:
- Parenting Coordinators
- Financial Advisers
- Pension Evaluators
These types of professionals add value to the planning process of the separation and to the separation agreement itself but do also add to the cost of the legal separation.