Foreign Property and Family Law in Canada

Divorce In Canada Divorce is a difficult process, especially if you have recently moved to Canada and you are unsure about what laws apply to you. Generally speaking, Canadian Divorce law is similar to the divorce law of the countries that form a part of the European Union. Canadian Divorce, however, is vastly different from many other parts of the world, such as Iran, mainland China, Saudi Arabia etc. Faced with divorce, you may prefer to obtain a divorce in Canada due to its features such as: Canadian Divorce law generally favours less financial secure spouse; There are no citizenship requirements to get a Divorce in Canada (however, you have to reside in the province for at least one year); Canadian judicial system is focused on the best interests of the children; Canadian Divorce Orders are recognized in a variety of jurisdictions around the world; This article will address the most common questions regarding separation and reconciliation in Canada. For more specific legal advice, please contact our firm, Bahmadi Law and we will be happy to assist you. What is a date of separation? How does it affect my divorce? Unlike many other jurisdictions, Canadian Divorce law does not require a reason for separation or divorce application. The courts, however, do require a specific date when the spouses separate and there is no reasonable prospect that they will resume cohabitation. The date of separation (also known as valuation date) can be the most important date in your divorce process. It determines many aspects of a contested divorce, for example: It can affect the way you and your spouse have to divide your property; It can affect your eligibility for support; A year must pass after the date of separation for the Ontario Courts to grant you divorce; The separation date marks the starting point for certain deadlines (called limitation periods); It is not uncommon for the spouses in a high conflict divorce process to argue about the date of separation and dedicate days of their trial time to determine this issue. Do I need to move out of our residence to separate from my spouse? The date of separation itself has a number of features which are discussed in various cases in great detail. Sometimes its easy to determine when the couple separates as one moves out of their common residence. It is, however, common that the separated spouses continue to reside together. There’s also no requirement to move out of the family residence. Spouses can be separate and apart under one roof. In reality, living separately and apart under one roof can become tricky. The courts review your post-separation conduct under the microscope to determine its context and the real date of separation. How do I convince the court that I am separated? The courts will generally look at the context of the spouses conduct during the separation and ask the following questions: Did you and your spouse exchange texts/emails regarding separation; Are you sleeping in separate bedrooms; Are you appearing together in social events; Are you taking vacations together; Are you taking common pictures or exchange messages of love and affection; Are you filing your individual taxes as married or separated. However, even if the courts determine that the spouses properly separated, Canadian Divorce law allows the courts to determine if the spouses to reconcile if certain conditions are met. What is reconciliation? How does it affect my divorce? Canadian Divorce law, specifically section 10 of the Divorce Act puts a positive obligation on the Court to consider if the parties reconciled or there is a reasonable possibility of reconciliation. This means that when the court reviews the evidence or even the attitude of the spouses and determines that they have reconciled or reasonably can reconcile, the courts must postpone the divorce proceeding and nominate a suitable person to assist you and your spouse with reconciliation. If this happens during your divorce process, not only will this delay and complicate your divorce process but also you will have to determine another date of separation. How does the date of separation affect my property rights? The separation date is extremely important in the context of division of property. It marks the date that the courts use to determine the value of your, your spouses and your joint property. Even if years pass from the date of separation, the courts will most likely use the date of separation as a reference for division of property. For example, if you had a car valued at $20,000 at the date of separation and sold it years after, the court will still likely to require you to include the value of the car on the date of separation in the division of property calculation. This is done to preserve fairness to spouses on the date when they separate and to avoid one spouse depleting their assets to avoid dividing the property. Looking at another scenario, if your spouse had $50,000 on his personal account on January 1 but cashed that amount on January 15, your spouse is likely to vigorously argue that January 15 was the date of separation to minimize the value of his property on the date of separation. For these reasons the determination of the exact separation date can become a highly contested issue which affects thousands to millions of dollars. How does the date of separation affect my support rights? Separation date also generally affect the duration of the spousal support in case of the married spouses. Generally, the longer the marriage is, the longer the spouse can receive support. In some cases, a spouse can argue that the marriage was extremely short and the parties were separated for many years in order to avoid their spousal support responsibility. For unmarried but cohabiting couples the date of separation is even more important as it also is used to determine the eligibility for spousal support. We will discuss the cohabitation in another article.