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Separation or Divorce

At Pace Law, we have extensive knowledge and experience in separation and divorce matters. Our lawyers and staff are committed to protecting your legal rights, and getting you the most just and fair outcome possible.  Whatever your needs are we encourage you to contact us for a free, no obligation, confidential 30 minute in person or remote video consultation to discuss your matter.  We are here to help.

Divorce or Separation?

One of the most common questions that people ask is: “What’s the difference between a divorce and a separation?”, or “When am I legally separated, and when am I divorced?”

While a divorce requires a court order; a separation does not.  In fact, you don’t ever need to go to court in order to be separated.  For the purpose of family law, parties are deemed to be “separated” when they are living “separate and apart”.  This usually means that the parties are physically apart and are living in different homes, however, this is not always the case.

Reasons the Court will deny you a divorce

Collusion is defined in the Divorce Act as any agreement or conspiracy to which an applicant for a divorce is either directly or indirectly a party for the purpose of subverting the administration of justice, and includes any agreement, understanding or arrangement to fabricate or suppress evidence or to deceive the court, but does not include an agreement to the extent that it provides for separation between the parties, financial support, division of property or the custody of any child of the marriage.


An example of collusion would be where a couple agrees to lie about their actual date of separation so to obtain a divorce judgment at an earlier date.

Connivance occurs when the spouse requesting the divorce has encouraged the other to commit a matrimonial offence so that there are grounds for divorce.This bar only applies to situations contemplating adultery or cruelty as a ground for divorce.This bar is discretionary in that the court may still grant a divorce notwithstanding condonation if it would be in the public’s best interest to do so.

This bar also only applies to divorce applications brought on the grounds of adultery and cruelty. Condonation occurs when a spouse, with knowledge of the offence, forgives the offence and continues or resumes cohabitation with the guilty spouse. However, mere cohabitation is not sufficient to prove condonation.  Instead, it must be coupled with an actual intention to forgive and to be reconciled on the part of the wronged spouse.

If a spouse has condoned a past act of adultery or cruelty, he or she is prohibited from reviving that act and using it as a ground for divorce in a later application. Just like connivance this bar is discretionary in that the court may still grant a divorce notwithstanding condonation if it would be in the public’s best interest to do so.

Lastly, if the couple that is applying for a divorce has children and reasonable arrangements have not been made for their support the court may stay the granting of the divorce until such arrangements have been made.

This bar is discretionary since the court must be satisfied that the arrangements made are reasonable prior to granting the divorce. The court may satisfy itself by taking into consideration the guidelines amount, written agreements between the spouses and any special circumstances surrounding the specific case that may or may not make the arrangements reasonable for the support of the children.

Therefore, once the spouses have made an application for a divorce based on a breakdown of their marriage, reasonable arrangements for the support of the children have been made and there is no evidence that they colluded, connived or condoned the court may grant a divorce dissolving the marriage.

After the divorce is granted it will take effect on the thirty-first day after the day on which the judgment granting the divorce is rendered. This will apply unless special circumstances exists making it necessary that the divorce take effect immediately. However, before the court may do this the parties must agree that they will not appeal the judgment. If instead the parties choose to appeal the judgment then the effective date of the divorce is the day on which the appeal process is exhausted.

You have 31 days to appeal a divorce judgment. Once the effective date has been reached either spouse should apply for a Certificate of Divorce stating that a divorce has been granted and has dissolved the marriage.This certificate is conclusive proof of the formal divorce judgment rendered.

FOREIGN DIVORCES

The Divorce Act stipulates that a divorce may be recognized in Canada if either former spouse was ordinarily resident in that country for at least one year immediately preceding the commencement of the proceeding for the divorce.  There are other situations under the act that may recognize the foreign divorce.