Living Apart — Separation

Living Apart — Separation
There’s no such thing as a ​“legal separation.”

How to separate

Whether you’re married or living with someone in a common-law relationship, you become separated as soon as one (or both) of you:

  • decides to separate,
  • clearly tells the other spouse the relationship is over, and
  • acts like it’s over.

Typically, spouses are separated when they live apart. But, you can live in the same house and still be separated. You don’t have to move out. But you do have to stop living in a spousal relationship; for example, you stop sharing the same bedroom, stop sharing meals, stop going out together as a couple, and so on.

  • You don’t have to see a lawyer, go to court, or sign a document to be separated.
  • You don’t need your spouse’s permission to separate; it’s enough for you alone to decide the relationship is over.

If you’re married, you’re legally married until you get a BC Supreme Court order for divorce (or annulment, if applicable). You don’t need your spouse’s permission or agreement to apply for a divorce.

If you’re unmarried, you don’t need to get a divorce. Your spousal relationship is over as soon as you separate.

How to avoid going to court

It can be less expensive, less stressful, and faster to settle your family law issues without going to court, if you can. See How to reach a separation agreement below for some options to resolve your disagreements without going to court.

Both the Family Law Act and the Divorce Act recommend that you try to resolve any disputes outside of court first, and go to court only if you can’t come to an agreement another way.

You might not have to go to court if you can agree on your family law issues, including the following:

  • parenting arrangements,
  • child support and spousal support, and
  • property and debt division.

If you and your spouse can make an agreement, you’ll save time, money, and emotional turmoil. The process will be private, and you’ll also be able to keep control of important decisions that affect your family.

It’s important to talk to a lawyer before you sign an agreement. It can be a long and difficult process to change an agreement (especially about property division or spousal support) after you sign it.

An agreement after separating

You can make an agreement after you separate (called a separation agreement). If you made a prenuptial or marriage agreement, you can refer to it in the separation agreement and attach it as an exhibit. If you can’t agree on all the issues, you can make an agreement about some of the issues and ask a mediator or other dispute resolution professional to help you settle the rest. You could also ask the court to make a court order if you’re not able to reach an agreement.

See How to make a separation agreement

How to reach an agreement when your relationship ends #

Find out your rights and responsibilities
See the  Family Law in BC website for where to get legal advice.

Make a list of the topics
What topics do you need to agree on? If you have children, this would include parenting and child support arrangements. You might also need to divide property, debts, and household expenses or arrange spousal support.

Share financial information
This includes tax returns, pension statements, bank statements, and information about debts.

See if you can agree
Talk about the details with your spouse.

Write out the agreement
You, a lawyer, or a mediator can type it and print two copies. If you need help from a mediator or lawyer, see Where to get more legal help.

Review the agreement
Each of you should see a different lawyer, who can review the agreement and make sure it is fair and meets legal requirements. Don’t sign if you feel pressured.

Sign the agreement
If you’re sure that the agreement is fair and meets legal requirements.
Don’t sign if you feel pressured.

You each need to sign two agreements, so you each have an original signed agreement. You must also have your agreement witnessed, especially if it deals with property. The witness doesn’t have to be a lawyer. You and your witness can initial and sign two copies in front of each other. Send them both to the other person, who sends one signed and witnessed version back to you.

After you sign

If your situation changes
It’s difficult to change an agreement after you sign it. Changing agreements about your children is only possible if there’s been a change of circumstance, or if it would be in the best interests of your children. It’s a good idea to build a review into the agreement because, for example, your children’s needs and interests might change, or your financial circumstances and incomes might be different.

To have your agreement enforced after you separate
Your family law agreement might cover various family law topics, such as parenting, support, and property and debt division. As long as it includes parenting, support, or both, it can be filed in court at a court registry (in person or online). You can ask the court to enforce the filed agreement later if necessary.

Parenting arrangements

When you separate, it’s helpful to make parenting arrangements that set out how you and the other parent will divide parenting time and make daily decisions that affect your children. It’s also helpful to decide how you and the other parent will make significant decisions, for example, about education, health care, and religion. (The BC Family Law Act calls this parental responsibilities. The federal Divorce Act calls it decision-making responsibility.)

Any agreement about children must be in their best interests. It’s important to take the children’s opinions and feelings into account, if they can express them. Your agreement might need to change as your children grow and develop and your circumstances change.

You can start preparing an agreement about children, support, and property right away. Or you can take your time with it. Note that you can only complete an agreement about children and support once you’ve separated.

If you don’t have a formal agreement

After you separate, you don’t need to have a formal agreement about your parenting arrangements. You and your spouse might develop informal routines for your children and make parenting decisions. Even if you don’t have a formal agreement, it’s best to check with the other parent before you change the routine.

How to reach a separation agreement

You might be able to reach an agreement with your spouse by working with them directly.

Or, you might need help to work through the difficult issues that come up after you separate. Here are some options for where to get help to reach an agreement.

Mediation

A mediator can help you and your spouse work together to identify and resolve the family issues caused by your separation or divorce.

Mediators don’t take sides, make decisions, or force solutions on you. They encourage you and your spouse to listen to each other and help you communicate and find ways to solve your issues. Mediation can help you find solutions you can both accept. If you have children, the mediator helps you reach an agreement that’s in the best interests of your children.

See Help to make an agreement for where to find a mediator.

Family justice counsellors

Family justice counsellors are specially trained government employees at Family Justice Centres across BC. They also work at the Justice Access Centres in Abbotsford, Nanaimo, Surrey, Vancouver, and Victoria. They can provide services in person or virtually (by phone or videoconference).

Family justice counsellors provide free services for parents and family members, and can:

  • give you legal information and help you explore ways to settle parenting and support issues,
  • give you legal information about how to get or change family agreements or orders,
  • provide free mediation services, and
  • provide initial counselling and refer you to other services.
See Help to make an agreement for where to find a family justice counsellor.

Family lawyers

Lawyers who specialize in family law can help you reach a fair and lasting agreement. Some lawyers offer lower-cost legal services including:

  • independent legal advice on agreements. Brief advice on an agreement you’ve already drafted.
  • unbundled or limited scope services. Instead of representing you from start to finish, they do only specific tasks and you do the rest; for example, you might hire a lawyer to deal with your property division issues, not your parenting issues (which you might be able to get help with from a family justice counsellor).
  • sliding scale. Hourly rates that depend on what you can afford to pay.
  • flat rate. Doing specific tasks for a set fee.
  • legal coaching. Giving you legal advice while you negotiate and develop a family law agreement.
See Help from a lawyer for where to find a lawyer.

Collaborative family law

Lawyers who practise collaborative family law work together with you and your spouse to find solutions that work for both of you. You and your spouse each still have your own lawyer. The collaborative family law process is different from a traditional separation or divorce in a few important ways:

  • No court. You, your spouse, and your lawyers sign a written agreement
    that says you’ll work together to solve your issues without going to court.
    If you end up going to court, you have to find different lawyers to represent
    you in court.
  • Honest communication. You and your spouse agree, in writing, to open and
    honest communication. This includes openly sharing information with each
    another; for example, about your finances.
  • Team approach. You and your lawyers work as a team to solve your disputes,
    whether the issues are about support, dividing property, or parenting your
    children. The team can also include other members, such as specially trained
    lawyers, divorce coaches, child specialists, and financial advisors, as needed.
  • Four-way meetings. Instead of your lawyers doing all the talking, you, your
    spouse, and your lawyers have a series of meetings. Sometimes your lawyers might meet alone to decide what the meetings will cover. Or they might share information about you or your spouse to help solve the issues. The number of meetings depends on how many issues you and your spouse face and how complex they are.

Collaborative family law involves hiring lawyers and other professionals, and it can be expensive. It’s important to understand what you can afford and are prepared to pay.

See Help to make an agreement for how to find a collaborative family lawyer.

Arbitration

An arbitration is an out-of-court process in which you and your spouse hire a neutral, trained person (called an arbitrator) to make a decision resolving your family law problem. The arbitrator acts like a judge, listening to both of you and then making a decision that is legally binding.

See Help to make an agreement for how to find an arbitrator. 

Parenting coordinators

A parenting coordinator can try to help you and the other parent resolve disagreements about your parenting arrangements set out in a separation agreement or court order. If you can’t agree, then a parenting coordinator can make a binding decision that you must both follow.

You can agree to get a parenting coordinator yourselves, or a judge can order you to see a parenting coordinator if they feel you need one. 

See Help to make an agreement for how to find a parenting coordinator. 

How to make your agreement legally binding

No matter how you make your agreement, take time to think about it and have a lawyer look at it before you sign it. You and your spouse each need to have different lawyers review the agreement. Lawyers aren’t allowed to act for both parties in a family law matter.

Each of you must sign the agreement. If your agreement is about property or spousal support, at least one other person must witness your signatures. The same person can witness both signatures. Don’t sign an agreement if you feel pressured.

Generally, a signed agreement is legally binding. But the court won’t enforce an agreement (order you and your spouse to follow the agreement) that isn’t in the best interests of your children.

How to enforce your agreement

You don’t have to file your signed agreement at a court registry or online. However, as long as it includes parenting, support, or both, you can choose to file the agreement at a court registry (in person or online). Once your agreement is filed, the court can enforce it, particularly if it’s in the best interests of your children. 

You can also enroll your filed agreement with the BC Family Maintenance Agency (BCFMA), previously known as the Family Maintenance Enforcement Program (FMEP). This program enforces the child support and spousal support parts of your agreement.

How to change or cancel an agreement

If you and your spouse agree, you can change your agreement without going to court. You just need to write and sign a new agreement and have it witnessed. Be sure that the new agreement makes it clear what’s changing and what’s not. Have the new agreement reviewed by a lawyer before you sign it.

If you and your spouse can’t agree, you can get help from a dispute resolution professional such as a mediator to help you come up with a new agreement. (See the options listed in How to reach a separation agreement.) Or you can apply to the court to change all or part of an agreement and replace it with court orders. The court follows the Family Law Act to decide whether to change all or part of an agreement.

Whether the court changes the agreement, and for what reasons, depends on the issue. For example, the court might change an agreement about parenting time only if the agreement isn’t in the best interests of the child.

See Best interests of the child.

It’s sometimes difficult to change agreements about financial issues. It’s a good idea to see a lawyer before agreeing to property division or spousal support.

The chart When a court sets aside or replaces an agreement which explains when the court can set aside (cancel) or replace an agreement.

If you plan to leave the home you share with your spouse

Here are some important things to take with you:
  • financial information, such as: 
    • your tax returns for at least three years
    • bank account, credit card, investment, and debt statements
    • copies of recent pay stubs
  • BC Services Card/​CareCard 
  • marriage certificate
  • passport and immigration documents
  • driver’s licence, insurance, and ICBC documents if you take a car with you
  • Secure Certificate of Indian Status (secure status card) or Certificate of Indian Status (status card)
  • clothing and personal belongings
  • medications and prescriptions
  • photocopies of information about income and assets you and your spouse have jointly, or your spouse has separately, such as: 
    • pay stubs
    • tax returns
    • company records and ledgers
    • bank accounts
    • investments
    • RRSPs
If the children are coming with you, also take their:
  • passports
  • birth certificates and BC Services Cards/​CareCards
  • clothing and personal belongings
  • medications

Also, write down your spouse’s Social Insurance Number (SIN), BC Services Card/​CareCard number, passport number, and date of birth. These can be useful later if you disagree about money and property, or if you need to find your spouse.

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