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By: Claire McDowell

The following blog post is meant for information purposes only. It is not legal advice. To discuss your particular matter with a family law lawyer, please contact us to book a consultation. 

Moving forward with a Separation when one spouse is unwilling and/or does not want to separate can be an extremely difficult and stressful process. Once one party has determined that there is no prospect of reconciliation in a relationship, there are many different factors that need to be considered prior to moving forward. First and foremost, it is advisable to seek out legal counsel to discuss each of these factors to ensure that you are receiving legal information and/or advice that relates to your specific situation. 

Prior to notifying the other party that you are looking to separate, it is important to consider the immediate ramifications of this choice, most important of which are often the matrimonial or family home, and the parties immediate living situation following a separation. If the parties move forward with a separation and one party does not have alternative accommodations, it can lead to the parties continuing to reside in the same home while separated, meaning that they will be considered to be living separate and apart. Depending on the parties’ attitudes and response to the separation, this can make for a very difficult living arrangement. 

One further considering is whether the separating parties have children. If so, it is important to have some forethought as to how the children’s lives will be impacted by this decision and how the parties can work together to try and minimize the significant changes to their lives, such as their living situation and parenting time with both parties. 

Once you have considered the options and have determined that you would like to move forward with the separation, you will need to notify your partner of your intention to separate. This can sometimes lead to a negative reaction from your partner and they may indicate that they do not want to separate and would like to make an effort to work things out. While that is always an option available, should the separating party maintain that they would like to separate, it is important to note that, in Ontario, separation is unilateral, meaning that if one party wants to separate and the other does not, the parties will be considered separated once that intention is made clear. One party’s unwillingness to separate is not sufficient to keep a couple together when the other party has made it clear that they would like to separate. 

It is generally advisable to notify the opposing party of the intention to separate in writing, or to follow-up and confirm in writing, so that you are able to clearly establish and identify at a later date what the parties’ date of separation was, which can be useful for the purpose of calculating support or equalization as the parties move forward in the separation process. 

Generally, the recommended next steps for parties is to being negotiating the terms of a Separation Agreement, which often starts with the parties collecting and mutually exchanging financial disclosure, being Financial Statements, which will give the parties and/or counsel an idea of the parties’ respective assets and liabilities at the date of marriage/cohabitation as opposed to now, at the date of separation. Should the other party in the separation fail to provide this information, or show a willingness to negotiate terms of a Separation Agreement in good faith despite best efforts on the other party’s part, this can be a clear indication that the other party is unwilling to cooperate in this matter. 

Should this be the case, and continue as the separating spouse and their counsel continue to make best efforts to move forward with negotiating a Separation Agreement, there comes a time where parties have to question whether it is a good use of time and resources to continue to try and negotiate for a Separation Agreement or whether their time would be better spent bringing an Application to the Family Court for judicial assistance. For the most part, lawyers and Judges will encourage parties to settle issues out of Court where possible, however in circumstances such as those described herein, there can come a time where that is no longer practicable and the parties need the additional guidance of the judicial system to assist them in finalizing the issues in their separation. 

In order to get more information about navigating the separation process, please contact our office for further assistance. 

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