Caution: This page contains ONLY GENERAL LEGAL INFORMATION.
It is NOT LEGAL ADVICE nor a replacement for talking to a lawyer
and getting legal advice about your case.
The law can be complicated and the details of a case can be even more complicated!
There are exceptions for every rule.
What you do not know can harm you. Do not rely on general legal information.
AT YOUR OWN RISK.
There are a number of things you should consider when you separate:
Ownership of Land – Joint Tenants
If you both are on title land (including the house on it) and you are “joint tenants”, when one of you dies the other owns the whole property automatically. It does not matter whether you are separated. This can have disastrous (or beneficial) effects. The way to stop this is to “sever” the joint tenants. You will need a real estate lawyer to do this. (Strange as it sounds, what they do is transfer the property from you to you.) Then you own the property as tenants in common (50% each) and there is no automatic transfer on death. You can check whether the property is owned as “joint tenants” by reading the Deed to the property.
Joint Bank Accounts & Other Investments
The problem with joint accounts is that either party can withdraw money. (It is possible to set this up so that both have to sign to withdraw money, but this does not always work.) Be cautious about putting more money into joint accounts. Get advice about taking funds out. If you maintain an account to pay the mortgage, then discuss alternative options with your banker. Make sure that the money actually goes to the mortgage and is not withdrawn first.
Joint Credit Cards, Lines of Credit, and Other Loans
The institution giving the loan does not care about the separation or who actually used the money.You are both liable for the full amount and they can go after either one of you. The safest path is to speak to the institution – get a confirmation that the card or line of credit cannot be used for any future withdrawal (i.e. “frozen”).However, they will not let you out of paying the total owing. They may kick up a fuss of be poorly informed about this.But be clear about what about what you are asking and speak to a supervisor if necessary. Get legal advice if they refuse.
Beneficiaries of RRSPs, RESPs, Pensions, Life Insurance, Etc.
For life insurance, registered savings, and certain other assets, you can designate who gets the money if you die.(This avoids the complications and costs of the funds going through your estate.)Separation does not cancel who the designated beneficiary is. You need to designate a new beneficiary (using the institutions procedure) if you want to change the beneficiary. This is something you should consider when you separate.
Wills and Estates
If you do not have a valid will, then your estate on your death will be distributed under the intestacy rules. This means that your spouse (even if you are separated) will get all or at least the largest share. To prevent this, you either need a divorce or you need a Will. If you have a Will and your spouse is a beneficiary, consider doing a new Will.
Note that getting married cancels you old Will, but separation does not invalidate your Will.
Decisions in Case of Incompetency – Powers of Attorney
If you are unable to make important decisions (due to illness or injury), someone must make financial and personal decisions for you. For medical decisions, doctors may look to your next-of-kin, which may mean your spouse, even if you are separated. Someone you live with might have no say. Consider doing Powers of Attorney for Personal Decisions and for Property Decisions. Separation does not automatically change an existing Power of Attorney. To become a decision maker for someone when there is no valid Power of Attorney requires a very expensive and complicated court proceeding.
Documents and Records
Important documents may “disappear” from a shared home. It is best to secure them. If they are yours, then remove them to a safe location. But you cannot take someone else’s documents. Copies of the documents are useful.(You can get apps for your phone that scans documents.)Be cautious about taking the children’s documents, unless they are going with the children.
Government issued identity documents – passports, birth certificates, health cards, drivers licenses, etc. – can be very hard to replace. Technically, they are owned by the government but you have a right to possess them. If you cannot get possession of the document, you are usually required to report them “stolen” to the police. So, keep them somewhere safe. Courts will order children’s documents to be turned over to one of the parents. However, sometimes there are claims the document is loss or was never in the person’s possession.
Contents of Home
Sometimes, a dispute about the contents of the home arises. As time goes by, it becomes harder to give detains of the contents. If there are any items in he home or elsewhere that either of you might argue about, then you should record details of that item. One simple way is to carefully video tape all the items. You can also do this to prove what you took and what you left on separation.
In the law, there are deadlines to bring a court proceeding to make certain requests or claims. In most cases, if you wait too long, you lose your claim. However, there are sometimes exceptions. The length of time depends on the nature of the claim. Regardless, always get detailed legal advice before delaying any claim. There are always risks in delay and their may be ways of minimizing them.
This is a claim to the division of the value of property acquired during a marriage. The limitation date is six years from the date of separation or two years from the date of divorce.
These are claims to an interest in property based on contribution and unjust enrichment. Such claims regarding land have a limitation date of ten years. If the claim is about an asset that is not land, the limitation is two years.
There is no specific limitation date for spousal support claims. However, long delays will seriously affect the strength of your claim.
There is no limitation date on child support claims. However, as time goes by evidence is lost. There is also a prejudice to delay that a court will consider. It is best not to delay. You cannot claim child support, if there has been no court order or domestic contract and if at the time of the claim the child is not eligible for support.
Upon separation (whether married or common-law) or divorce, you have a claim to part of the Canadian Pension Plan credits earned by your spouse. This does not go through the courts – CPP deals with this directly. There are limitation dates for doing this, that depend on various factors. Their website will list the deadlines.