In Manitoba, legal separation is governed by the Divorce Act. 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.
Separation by Mutual Agreement
Separation agreements allow couples to separate amicably with little or no involvement from the courts. Ideally you can work out a mutually acceptable agreement directly with your spouse or common-law spouse. You might find it useful to have a mediator help you with issues such as support and custody, which can become heated.
Once you've reached an agreement, have an attorney draw up the formal separation agreement. The attorney may suggest alterations to the agreement, to ensure that it's fair and considers the legal rights to children. Attorneys representing each spouse separately may need to negotiate an agreement, if the spouses can't do it themselves. Once the formal document is agreed on and signed, the couple is legally separated and bound by the terms of the agreement.
Separation by Court Order
You may seek a court order on separation instead of a separation agreement. It's best to consult a lawyer to determine which orders are applicable to your situation, and how best to proceed. You don't need your spouse's agreement, or to prove misconduct by your spouse, but must simply demonstrate to the court that you and your spouse are unable to reconcile. The judge will either issue an Order of Separation to legally separate you; or order marriage counselling if there appears to be a chance of reconciliation.
Filing Additional Orders
Depending on your circumstances, you might need to file additional orders with the court. You may request financial support from your spouse for yourself and any children you may have, seek access to information on your spouse's financial assets and debts, ask that your spouse pay your legal costs, request the sole right to live in the marital home, or prevent your spouse from immediately selling the home.
Parenting and Custody Arrangements
Some of the thorniest details of a separation revolve around parenting and custody. Again, the best-case scenario is simply to come to an agreement between yourselves, with the help of a mediator if necessary. Once you've settled the details, draw up an agreement and consult a lawyer to formalize it.
If you and your spouse are unable to agree on parenting arrangements, you'll need to petition the court for a determination of child custody and access. The court may require you to undergo mediation before evaluating your petition.
When the Court Has to Decide
Before the Court of Queen's Bench will decide custody and access, both parents must complete the "For the Sake of the Children" parent information program. The program consists of two three-hour seminars; each participant receives an attendance certificate, which must be filed in court before hearings begin. The court may choose to order an assessment by a family relations specialist. This expert will interview and observe the family, speak to relatives and teachers, and then recommend parenting arrangements.
If both spouses agree to the terms of the report, those form the 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.
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.