Legal Studies 1030

Section 1 - the Law and relationships

Lesson 6 - Separation

For couples who are legally married, separation is an intermediate step between marriage and divorce. It occurs when a couple decides not to live together as husband and wife anymore; they "live separate and apart." While usually, one spouse moves out of the family home, a couple can be separated while living under the same roof. Canadian law considers a separation valid if either spouse can prove that they sleep separately, share little or no communication, have no common activities, and live separate lives. Unless they get a divorce, the couple is still legally married. Separation does not end a marriage.

Married couples do not need legal documents when separating. Many negotiate written separation agreements, which outline each spouse's position on issues such as: child custody; visitation rights; spousal and child support; ownership and division of property and debts; whether or not the family home is sold.

The courts are not involved in preparing separation agreements. Once the couple prepares the document, it becomes as enforceable as any other private contract.

However, courts reserve rights to determine terms of custody and child support, as the best interests of the children is the most important issue.

What happens if one spouse lies to the other about property and debts? See the following case study:

Case Study: Until Deceit Do Us Part
(From: Law Now: Relating to Life In Canada - July/August 2010 - Article written by Rosemarie Boll. Case: Rick v. Brandsema, (2009), S. C. J. No. 10)

Rick and Nancy met when they were young. Both of their families were religious, and when Nancy became pregnant, they had to marry. They started out poor, but over their 28-year marriage, they worked hard. They built a successful dairy farm and raised five children.

But both parties agreed that the marriage wasn't a happy one. They argued frequently. Nancy said that Rick repeatedly assaulted her; Rick said that it was never more than occasional pushing and shoving. When they separated in 2000, Nancy was in serious mental distress. Her husband freely admitted that she was emotionally unstable. In fact, he said that she was paranoid and delusional. A psychiatrist later concluded that Nancy had a psychiatric disorder.

Both Nancy and Rick intended that their assets would be shared equally. Unfortunately, Nancy did not take her lawyer's advise to get more financial disclosure from her husband, so it did not turn out that way.

Nancy was primarily the homemaker, and Rick controlled the family businesses and finances. Rick took advantage of his position and fiddled the books to undervalue their assets. He pocketed an extra $650,000 which should have gone to his wife. Nancy learned about the deceit and went to court to set aside the settlement agreement. After a long battle, the Supreme Court of Canada agreed with Nancy.

The Court said that in the case of separation agreements, husbands and wives may not be parties of equal strength. A mentally ill person may be vulnerable to deceit and manipulation by a financially controlling spouse. The Court also said that spouses have a duty to fully and honestly disclose (provide an accurate account) all financial information that might be relevant. Both parties need to know what is on the table before deciding what concessions to make or offer.