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Often I hear the term bandied about by people who are separated that they need to get a “legal separation”. This term is a misnomer. In our statutes which govern separation and divorce there is no such term. A couple is separated when at least of one of them have expressed their intention to separate.  In fact they can still live under the same roof and be considered living separate and apart.  So this begs the question how do they then deal with their separation and make it legal?

There are different avenues parties can choose to deal with resolving the issues surrounding their separation.  They can bring an application to the court and resolve their differences in a court of law, they can go to mediation/arbitration and come to a settlement with the help of a mediator or they can settle their matters by each hiring a lawyer and negotiating the terms of their settlement and signing a separation agreement.

A separation agreement is a legal document which is signed and witnessed by both parties which sets out the terms of their separation and also confirms the date of separation. There are many factors to consider upon separation, such as but not limited to custody of the children, support (child and spousal), possession or sale of the matrimonial home and equalization of the net family property. These are issues which can be negotiated and outlined in an agreement.

Why would you sign a separation agreement? Simplistically, this avenue is often one that is chosen because it can be less acrimonious, less costly and avoids a court application. A couple separates and the separation is difficult enough emotionally. They want to do this as painless as possible. They are confused and they need guidance. Each party is represented by a lawyer who can advise their client as to their rights. When negotiating an agreement the parties feel they are players in the terms which are ultimately decided on and they can control the outcome of their separation. There are often compromises on many issues but each party can go away feeling there is no winner or loser. An example of this is dealing with custody and access to the children. This issue can be the most difficult. It is often better for the parties to be able to negotiate who the children are going to live with than have a Judge who is a stranger to the parties tell him/her where the children are going to live and when they will see their children. The parties want finality to their situation and signing an agreement helps to achieve this in a more expeditious manner.

In conclusion a party can’t apply to a court to be found legally separated or a party cannot be deemed legally separated after a certain amount of time but you can take legal steps to deal with your separation as set out above.

Marie Tukara is a partner in the Siskinds Family Law Department whose practice area includes property division, support issues, and custody and access. Marie can be reached at 519- 660-7894 or by email at [email protected].

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