In British Columbia, there really is no such thing as a “legal” separation in the way many people perceive it.

On a high level, you are considered separated if you or your spouse have decided to separate, have communicated this intention to separate, and have taken some kind of action to further this intention to separate.

It is possible for you and your spouse to continue to live under the same roof, but still be separated.

A divorce, on the other hand, is the termination of your legal marriage which takes place after the separation of married spouses. While you may date and move in with someone after separation, you must be divorced before you can remarry. Only married people can get a divorce.

Your date of separation affects a number of aspects of your family law case.

For example, your date of separation will matter when it comes time to apply for a divorce. In most cases, you and your spouse need to be separated for at least a year before a judge will grant you a divorce.

Further, your date of separation may determine what assets are family assets subject to division and even may sometimes impact the value assigned to an asset for division. On a similar note, the separation date may determine which debts are family debts, as opposed to the debt of only one of the spouses.

The above are only two examples of how your date of separation may impact your family law case and potentially your entitlements under the law.

Finally, your date of separation may impact you differently depending on whether you are married, or unmarried but cohabiting as spouses, particularly with respect to limitation periods.

In order for the BC Supreme Court to be able to grant you a divorce under the Divorce Act, you must show that either you or your spouse have been ‘ordinarily resident’ in British Columbia for at least one year. This typically means you lived in the province of British Columbia for one year, or more.

To apply for divorce in Canada, you must demonstrate that you have grounds for divorce. In Canada, there is only one ground for divorce and that ground is a ‘breakdown of the marriage’.

Breakdown of a marriage is established when one of the following factors can be demonstrated:

1. The spouses have been separated for at least one year
2. One spouse committed adultery
3. One spouse treated the other with physical or mental cruelty such that continuing to live together would be intolerable

While the Divorce Act does not specifically prefer any one of the three factors over the others, practically speaking, the Court will typically grant a divorce based on the parties being separated for at least one year, even if the other factors are also present.

Once a Court finds that grounds exist for granting a divorce, the assessment does not end there. The Court still has duties to fulfill before granting that divorce. For example, the BC Supreme Court Judge must be satisfied that:

1. There is no possibility of reconciliation between the spouses (unless the inquiry would be clearly inappropriate in the circumstances, such as with the presence of domestic violence)
2. Reasonable arrangements have been made for the support of any children arising from the marriage. Typically, this means that child support is being paid in accordance with the Federal Child Support Guidelines
3. There has been no collusion in presenting the divorce application by the spouses

Once the Court has granted you a divorce, the Divorce Order will not take effect for 31 days. After 31 days has passed (and you have obtained a divorce certificate from the Court Registry), you are free to remarry.

It is important to note that the simple fact of obtaining a divorce does not mean that you have dealt with all of the other issues which typically must be resolved after a marriage breakdown. These other matters are typically referred to as ‘corollary relief.’ Corollary relief may include matters such as parenting arrangements, child or spousal support and property division.

A Divorce Order may be made on its own or together with other orders dealing with corollary relief. Often spouses will first formalize a settlement of corollary relief in a Separation Agreement, and then once that is done, get a Divorce Order which simply grants them the divorce.

Situations where a Divorce Order may be sought by a spouse in advance of the finalization of corollary relief is, for example, when one spouse plans to get married to a new partner and does not wish to wait until all other corollary relief is settled all with his or her former spouse.

One common method of obtaining a divorce in British Columbia is by a process called a Desk Order Divorce. A Desk Order Divorce application is a process whereby you or your lawyer prepare and serve the appropriate court documents, file them with the Supreme Court Registry and have a judge approve or disapprove your divorce application. Nobody needs to physically go to Court and present evidence to the judge. On the contrary, the Desk Order Divorce process is more administratively intensive and focused.

A Desk Order will typically occur after all other matters have been finalized in either a Separation Agreement or Consent Order.

In Canada, we have ‘no fault’ divorce. Therefore, even if your spouse committed some wrongdoing, such as adultery or was violent with you during the marriage, while this experience may provide a ground for divorce, the wrongdoing in and of itself does not necessarily impact your other claims such as property division, child support, and spousal support.

However, a history of domestic violence may impact custody, guardianship, and parenting time.