KPA Lawyers – March 27, 2017

Before understanding how to access money (spousal support and/or child support) from your partner during separation, it is important to have a clear understanding of how separation is legally defined and when it occurs.

What is Separation?

Many people who are going through the process of separating from their partner mistakenly assume that formal steps must be taken for a legally recognised separation to be valid, like signing a contract or going to Court.

In fact, separation legally occurs when you demonstrate that want to live separate and apart from your partner. This means that you have decided that you want to end your marriage or common-law relationship, and that you have started to behave in a way that shows you want to end the relationship. Furthermore, only one of you has to want this for you to legally separate.

When does Separation occur?

Determining an exact date of separation can be complex. For most couples, the most convenient method of determining a separation date is the day that you ceased cohabiting with your partner with no reasonable expectation of cohabiting together again.

That being said, couples can be considered to be living separate and apart despite living in the same household. When you file for a divorce with the Court (later in the process) a Judge may look back into your relationship to determine when there was an absence of sexual relations, joint social activities, change in meal patterns, change in performance of household tasks, and other factors. These are all factors that are considered in determining when separation actually occurred.

What is a Separation Agreement?

Although you are not required to have a separation agreement, it can be advantageous to have one. Such agreements resolve issues upon which you and your partner agree, and helps narrows possible disputes during the divorce proceedings in Court. Your separation agreement can resolve issues about spousal support (see below) as well as other issues such as child support, custody of any children and access to any children, and dividing property.

It is not necessary to wait until you reach an agreement on every single issue before making a separation agreement. You can sign an agreement about the issues upon which you agree and leave the rest for later.

You can also enter into a separation agreement regardless of whether you’re married or in a common-law relationship.

How do I access money during separation?

It is very important to understand that the law mandates certain rights and responsibilities of upon you and your partner, and you should never sign a separation agreement without first speaking to a lawyer.

If your partner earns significantly more money than you do, and you are earning a very modest income, it is unrealistic and legally unacceptable for your partner to demand that you split the bills on a 50/50 basis.

In fact, upon separation, in most cases, the law prescribes that money must be paid by the partner who earns more to the partner who earns less. This money is called “spousal support”. Spousal support applies to partners who are married and to partners in a common-law relationship. Spousal support obligations also apply to same sex couples. The person who receives spousal support is called the support recipient. The person who pays support is called the support payor.

It’s important to keep in mind that spousal support is not an automatic right. Even for those persons who are entitled to spousal support, there is a legal expectation upon you to apply your best efforts to support yourself after separation.

If you believe that your partner is delaying the finalization of the separation agreement to avoid paying support payments or you do not trust that your partner will honour his or her support obligations, then you may be better off speaking to a lawyer rather than trying to resolve the issues yourself.

A lawyer can obtain an Order from a Judge compelling your partner to meet his or her support obligations. Such an order can then be enforced through the Family Responsibility Office.

I don’t think I can afford a lawyer, how can I find affordable legal representation?

There are two popular resources that assist persons in accessing affordable representation in the Province of Ontario.

If you are a low-income person, you may qualify for a legal aid certificate from Legal Aid Ontario. If you qualify, then you can obtain representation from a private-sector family lawyer of your choice who is authorised to accept legal aid certificates. Legal Aid Ontario will pay for all of the legal services which are authorised under the certificate. You can contact Legal Aid Ontario at the following toll-free number: 1-800-668-8258

It’s important to find a law firm that offers lawyers who are highly qualified but also accept legal aid certificates and JusticeNet clients. Many law firms also offer free consultations. If you live in the City of Mississauga or surrounding areas, you can contact us for a free case evaluation.

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