The terms “divorce” and “separation” have specific meanings under the law of marriage and divorce in Ontario and Canada.
For cohabiting couples, or couples in a common-law marriage, when the spouses stop living together and there is no reasonable prospect for them to start living together again, the cohabitation unit is dissolved. Both parties are then technically free to marry or cohabit with another person immediately.
For married couples, although the spouses are free to start living with someone else immediately after separation, they cannot enter into another marriage before a decree of divorce is granted by the Superior Court.
What about support payments?
Because of Canada’s unique constitutional division of power, separation and divorce are governed under different laws. In Ontario couples not seeking a divorce are governed under the Family Law Act; for couples seeking divorce, the Divorce Act applies.
Regardless of whether a divorce is granted, support obligations nonetheless exist under both statutes. Therefore, one spouse can commence a proceeding against the other for child support or spousal support payments, or both, immediately after they stop living together, whether he or she is seeking a divorce or not.
Typically, I recommend that clients start negotiating a mutually acceptable separation agreement or commence a proceeding under the Family Law Act in a provincial court immediately after they have stopped living together. This will help expedite the matter and reduce the cost.
If the parties are able to resolve all outstanding issues at the beginning of the separation, they may qualify to commence a joint divorce application in the Superior Court after they have been living separate and apart for one year.
The joint divorce application is relatively simple and expedient. After the court is satisfied that the couple have met the requirements under the Divorce Act, the court may direct the registrar to issue a decree of divorce without requiring the parties to appear before the court.