I have been reading some stuff on Divorce and Custody law in Canada, and you crazy Canadians aren't too much unlike us down here.
Legal Separation
To get a divorce in Canada requires that you and your spouse be separated for one year – something a lot of people call a legal separation, although this is not a legal term.
6 Common Legal Separation Myths in Canada
There are a number of commonly held beliefs about legal separation that simply are not true. Here are some of the more pervasive ones:
Myth #1. The first is that to be legally separated, you and your spouse must live in different homes. This is not true. The courts realize that often this is not financially feasible, and if you have children, it is in your and the children’s best interests to stay at the matrimonial home until custody and access arrangements have been worked out.
Myth #2. Another myth is that a temporary reconciliation ends a legal separation. This is not true. The Divorce Act’s policy is to make sure that couples try to work things out before a divorce is granted. Because of this, the Divorce Act allows couples to reconcile for a period or several periods totaling up to 90 days without affecting the one year separation period.
Myth #3. A third myth is that the exact date the legal separation started does not matter. This is not true. Obviously one full year of separation needs to pass before a divorce is granted. However, the date of separation is also important for other legal issues, such as the division of property. While this may not matter in some cases, in periods where assets values have changed dramatically in a short period of time, the exact date of separation can make a significant difference to how property is divided.
Myth #4. A fourth myth is that both parties need to agree to a legal separation. This is not true. If one spouse unilaterally decides to separate and takes action in that regard, the couple is separated, even if the other spouse does not want this.
Myth #5. A fifth myth is that there needs to be a separation agreement for the parties to be legally separated. This is not true. A separation agreement is a document that outlines all the rights and responsibilities of the spouses whose marriage is ended. Normally, it will need to be agreed upon before a divorce is granted. However, it is not necessary to sign a separation agreement, or any other document for that matter, for a couple to separate.
Myth #6. A sixth myth is that you must get a divorce if you are legally separated. The main thing a divorce does is allow you to remarry some time in the future if that is what you choose. Many people, for religious or other reasons, prefer not to take that final step, and it is not required. You and your spouse can stay legally separated for many years if that is what both of you choose.
Sole Custody And Moving
Even if you have sole custody of your children you still must obtain the permission of the other parent before moving. While asking the other parent can be very difficult, it’s worth discussing, and you never know if they’ll be receptive to the idea or not. Write down on a piece of paper the pros and cons so the other parent can see your point of view and perhaps you can encourage them to do the same for you.
When You Can’t Agree
If you and the other parent cannot agree as to whether you should move or not move, you need to start legal proceedings. You cannot force someone to accept your viewpoint, and if you still feel as though it would be in the best interest of your children to move, hire a lawyer. This is one of the most difficult areas of family law.
How The Court Decides
The court will simply look at what the best interests of the child are. While this is a very vague description of what the court looks for, it’s all that can be said. In general, if a parent has sole custody they are more likely to get a favourable ruling than one who shares custody and is looking to move the children away from the other parent. The larger role a parent has in a child’s life, the harder it is for a court to agree that the children will benefit from being moved away.
The reason you are moving away will also make a difference to the court. If you are moving for a legitimate reason such as to start a new job or for other economic reasons the court will be more likely to make a favourable ruling than if you are moving to live with a new partner.
Knowing how the court will rule is often difficult to predict, even for a family law lawyer. Each case is different: different people and different circumstances. So, have all of your ducks in a row when you are asking for permission to move your children and be sure that it truly will benefit them as well as you.
Distance Makes A Difference
If you are moving a short distance, the court is more likely to rule in your favor than if you are moving across the country. The court wishes that families would stay together, that children would know both parents well. So, the more distance you are putting between your children and their other parent the more difficult the decision becomes for the court. If you try to limit the distance you are moving, you may have more success in getting the permission you are seeking.
