How to Get a Legal Separation in Manitoba, Canada

Separation is governed by the legal system.

While a couple may separate simply by living apart from one another, legal separation is the best option when the couple has children or when financial issues must be considered. Though separated couples are still considered by law to be married, legal separation allows for division of property, financial support for separated spouses, and appropriate parenting arrangements when there are children. In Manitoba, legal separation is governed by the Divorce Act.

Things You'll Need

• Lawyers (recommended)
• Mediator (optional)

Instructions

Separation Agreements

1. Separation agreements allow couples to separate amicably with little or no court proceedings. Where possible, try to work out a mutually acceptable agreement with your spouse. If necessary, find a mediator to help ensure that the rights of both parties are respected.

2. Consult an attorney. Attorneys provide valuable legal advice to ensure that the agreement is fair and considers the legal rights to children. Attorneys may also help to negotiate the terms of the agreement when spouses cannot agree.

3. Create a formal separation agreement. Your attorney will help you to create a formal legal document. Once you sign this document, you are legally separated and are bound by the terms of the separation.

Court Orders on Separation

1. You may seek a court order on separation instead of a separation agreement. Consult a lawyer to determine which orders are applicable to your situation and how best to conduct your separation.

2. Demonstrate to the court that you and your spouse are unable to reconcile. You do not need to prove misconduct by your spouse, nor do you need his agreement to file for separation. If the judge agrees, she will issue an Order of Separation to legally separate you; if she believes that you may be able to reconcile, you may be ordered to pursue marriage counseling.

3. Determine what other separation orders you require. You may request financial support from your spouse for yourself and any children you may have (Order of Financial Support), seek access to information on your spouse's financial assets and debts (Order of Financial Disclosure), ask that your spouse pay your legal costs (Order of Costs), request the sole right to live in your home (Order of Sole Occupancy), or prevent your spouse from immediately selling the home (Order of Postponement of Sale).

Parenting Arrangements

1. Discuss parenting arrangements with your spouse. If possible, formulate a parenting agreement setting out terms of access and custody. Consult a lawyer to formalize the document. If necessary, you may involve a mediator.

2. If you and your spouse are unable to agree on parenting arrangements, petition the court for a determination of child custody and access. The court may require you to undergo mediation before evaluating your petition.

3. Complete the "For the Sake of the Children" parent information program. This program is required for both parents before court consideration of child custody or access. The program consists of two three-hour seminars. Each participant receives an attendance certificate, which must be filed in court before hearings begin.

4. If ordered by the court, undergo an assessment by a family relations specialist. This expert will interview and observe the family, speak to relatives and teachers, and prepare a report with recommendations for parenting arrangements. If both spouses agree to the terms of the report, the recommendations become their parenting agreement. If not, then the matter goes to trial to determine what arrangements would be in the best interests of the child or children.

Tips & Warnings

• Even if you were never legally married, you can still be legally separated if you have lived in a common-law relationship for three years (one year if you have a child together).

• You are not required to agree to mediation or a family assessment, but the judge will consider your refusal to cooperate as a negative.

• If one spouse does not meet the terms of the separation agreement, that spouse may be sued by the other.

• Unless absolutely necessary, do not involve your child in the court proceedings, as it may be psychologically damaging.

References

• Family Law in Manitoba: Divorce and Separation
• Family Law in Manitoba: Parenting Arrangements