Divorce & Separation


What Is The Difference Between Divorce And Separation?

Divorce is the final step in ending your marriage. A Divorce Order terminates your legal status as a “spouse”. This does not resolve all of the other issues that arise as a result of a separation from your spouse or partner.

A Separation Agreement is a legal contract that is completed based on the agreements you and your spouse/partner reach on the many legal issues arising out of the separation. Custody of children, access, parenting plans, division and equalization of property (including businesses), child support and spousal support must be addressed and can be agreed upon. Your agreement with your spouse on these issues can be put into a separation agreement which both parties sign. The necessary formalities in the preparation of the separation agreement will help to ensure that the agreement is later enforceable.   The Separation Agreement can allow you to proceed with an uncontested divorce based on the terms of the Separation Agreement.

If agreement is not possible, one spouse can start a court application to ask the court to rule on the things that the spouses cannot agree upon. This give the control and power over the decisions with respect to your family over to the judge. If privacy is desired, the decision making can be given to a Family Law Arbitrator who can impose terms that both parties must live by. Both parties must agree to a Family Arbitration.

How Do I Get A Divorce?

Before getting a Divorce Order, you first need to be separated for a year. Typically, before a divorce is granted, there are a number of other legal issues to resolve first, including child custody, child support, spousal support and property division. A judge will want to know that child support has been taken care of. These are dealt with through negotiation, litigation, mediation, collaborative law or arbitration. Each case is different and may require a different process to resolve the issues.

I Want To Get A Divorce But My Spouse Does Not. What Can I Do?

If your spouse is not willing to participate in the negotiation process and resolve the matters outside of court, you will have to bring the matter to court for a court order. The court can make an order against your spouse if you start an Application even if your spouse ignores your Application. Sometimes, this is the only way to get a spouse to respond.

My Spouse And I Both Want A Divorce. Can We Use One Lawyer?

No. It is important that you both have separate lawyers. Even if you agree on the terms of settlement and have agreed to enter into a separation agreement, you each need your own lawyer to give you independent legal advice on your rights and obligations as set out in the terms of the contract. If your spouse tries to challenge the contract in the future, a court is more likely to accept the contract if you have both had independent legal advice and representation.

I Lived With My Common Law Partner For Many Years But We Never Married. What Rights Do I Have?

If you lived together for at least 3 years, you may have a claim for spousal support. If a child is born of the relationship, there must be a relationship of some permanence for one year. Property rights are not the same for married spouses and common law spouses. You may also have some property rights, depending on the circumstances.

How Do I Get A Legal Separation?

When people ask for a legal separation, they are often asking about two things:

  1. When does a separation occur and what is recognized as a separation? 
  2. What is the formal, legal document or process that will evidence the fact that the marriage or union is over?

The date of separation is important in all Family Law matters. It affects a number of issues and in particular property, support and when the Divorce Order can be granted. A legal separation occurs when one spouse communicates to the other that they no longer wish to be a spouse of the other and there is no reasonable prospect of reconciliation.

The legal process used to resolve the issues does not establish the date of separation but a letter from a lawyer or a court application will signal or help crystallize the date of separation.

The final resolution of the issues may be embodied in a separation agreement or Court Order. A separation agreement governs the rights and obligations arising from the end of the relationship. The parties maintain the right to agree and decide on the terms in a separation agreement. A separation agreement can be prepared to address all the legal issues arising as a result of your separation, including child custody, access, child support, spousal support and property division.

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3300 Highway 7 West, Suite 210
Vaughan, Ontario L4K 4M3
Telephone: 416 987 3300

Fax: 905 907 0707
Hours: 9am to 5pm


Bortolussi Family Law is located in Vaughan, Ontario and serves the Greater Toronto Area including Woodbridge, Concord, Maple, Kleinburg, Thornhill,  Vaughan, Markham, Richmond Hill, Brampton, Bolton, Nobleton, Newmarket, Oxford, Orangeville, Aurora, North York, Etobicoke, Caledon, Whitchurch-Stouffville, King City, Schomberg, Mississauga, Oakville, Streetsville and Toronto.