Separation and Divorce: Implications[1]

In Ontario, there are significant implications when a couple (both common-law and married) separates and when a couple divorces. As more and more couples live in common-law relationships as well as the rate of divorce in this day and age, it is important to consider the following implications.

 Separation – Common-Law Partners:

• Support: For common-law couples, a partner may be able to apply for support if he or she separated from a common-law relationship where the couple had cohabited and had done so either continuously for a period of not less than 3 years, or in a relationship of some permanence and were the natural or adoptive parents of a child. There is no time limit by which a separated partner must make an application for support.
• Family Property: Common-law partners are not entitled to apply for a division of family property unless they have signed a cohabitation agreement that provides for such division. However, they may be able to pursue a remedy in the form of an award of damages or a constructive trust if they can prove there was unjust enrichment.
• Powers of Attorney: Separation has no impact on a common-law partner’s power of attorney for property or personal care.
• Estates: Separation does not affect a common-law partner’s will. However, where there is no will, a common-law partner has no statutory entitlement.

 Separation – Married Couples:

• Support: There is no time limit by which a separated partner must make an application for support.
• Family Property: An application for a division of family property must be made within 2 years of the date of divorce, 6 years of the date of separation or 6 months of the date of death, whichever is earliest.
• Powers of Attorney: Separation has no impact on a spouse’s power of attorney for property or personal care.
• Estates: Separation does not affect a spouse’s will. Similarly, where there is no will, a separated spouse is entitled to the preferential share of an estate (the first $200,000), and then to a further portion of the residue depending upon how many children the deceased had.

Divorce:

• Support: There is no time limit by which a spouse must make an application for support.
• Family Property: An application for a division of family property must be made within 2 years of the date of divorce, 6 years of the date of separation or 6 months of the date of death, whichever is earliest.
• Powers of Attorney: Divorce has no impact on a spouse’s power of attorney for property or personal care.
• Estates: Divorce or annulment will revoke any gifts or appointments made to a former spouse (i.e., if a former spouse was named as an estate trustee) and the will takes effect as if the former spouse had predeceased the deceased, unless the will expresses a contrary intention.

 It is wise to review your estate planning documents when there is a change in marital status. After all, it is unlikely you would want a former spouse making personal care decisions for you if you become incapable!

[1] Christine Van Cauwenberghe, Wealth Planning Strategies for Canadians 2017 (Toronto: Thomson Reuters 2017).