The Meaning Of The Term Legal Separation

A question that I am frequently asked is: what is a legal separation?

People often tell me they want a legal separation and usually they are referring to two things: one, what family law lawyers in the family courts consider being separated, which is also referred to as the date of separation; and two, a separation agreement.

Sometimes, it is easy to say when couples separate, for example, it could be the date one person leaves the house or the date the police come and remove someone from the house. Sometimes, it is the date that a person made the active decision and took the step to go and speak to and retain the family law lawyer. Or, sometimes, it is the date on which they serve their spouse with an application for divorce.

But sometimes, it is more difficult to determine when persons are considered separated for family law purposes. A family court could find that you are separated even if you and your spouse are continuing to live under the same roof and even if the Canada Revenue Agency has the view that you are still cohabiting together in a married or common-law relationship. To determine the date of separation, the court asks itself whether two people are living separate and apart, which can occur while still residing at the same address.

This is a fact-specific question, so courts look at factors such as whether the parties are still sleeping in the same room, whether they’re still having sexual relations, whether they’re making decisions together about the children, structuring the finances in the same way, going to religious ceremonies together, going on vacations together, going to social events together or representing to the public that they’re still together. Basically, they look at the history of the relationship, what has changed and when that change happened to determine the date when the parties separated. In either of these two situations (the first being when it’s clear what the date the separation is; the second being when the date of separation is determined by deciding when the parties began to live separate and apart) the date of separation is the date on which the parties are considered legally separated. And that is what people often are referring to when they ask about what a legal separation is. There are many consequences that flow from the date of separation and people should really speak to a lawyer about how the date of separation will affect them in their individual cases.

The second thing that people often refer to as a “legal separation” is the actual separation agreement. The separation agreement is a contract that governs the breakdown of the relationship and ongoing obligations the parties have, if any, to one another. If the parties settle the dispute outside of court, it will be the separation agreement that deals with the substantive issues that people are usually concerned about, for example, custody, access, child support, spousal support, their home and property division. It is the separation agreement that deals with these issues.


If you, or someone you care about, is dealing with family law issues in York Region, Durham Region or Toronto, contact Feldstein Family Law Group for a consultation.

This article is taken from a November 14, 2008 interview with Michael Wilson, Family Lawyer with Feldstein Family Law Group, a Toronto Ontario Family Law Firm. Note that laws vary from province to province. Please consult with a lawyer in your own area to be sure of the laws and specific issues in your own jurisdiction.