# Getting separated need help with paperwork?



## misratah500 (7 Dec 2011)

Hey,

So my common law fiance has decided to leave me. We broke up October 21st while I was on deployment and I've had to come home to deal with it, but we still live together till she can find a place. I know that's messed up but I didn't want to put her out in the cold so to speak. She will be gone in January. Now I need help drawing up a separation agreement. 

She said she doesn't want any part of my pension, savings accounts, or spousal support from me. Were also going to do 50/50 child custody. I know, it's a freaking miracle. I need to get this stuff in writing and get her John Hancock on it ASAP. She said she'll sign anything I put in front of her, because taking stuff from me would undermine her sense of new found independence. Whatever!

So I talked to the padre and she was going to hook me up with people who can help with this but she never got back to me. I'm not sure what to do as I have never gone through this before and I was wondering if anyone could help me out. From personal experience or maybe a RMS clerk.

1. What military paperwork do I need.
2. Can AJAG help me out or do I get a civilian lawyer?
3. Can MFRC help out with this?
4. How do I go about protecting my pension. (Shes entitled to half of four years.) 

Help me my brother's and sister's in arms. I need to look out for myself and my son before she changes her mind. I don't think she will but I'm keeping my cards close to my chest until that paperwork is done. And I want it to be water tight so some judge can't throw it out saying she was bullied into signing it or something.

I'm based out of Esquimalt so if anyone knows a good lawyer/mediator there, that would be great.


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## medicineman (7 Dec 2011)

I would go to your orderly room to get what you need initiated.  As for the legal stuff, AJAG might be able to advise, but they don't normally deal with family law issues like this.  I just left Vic, but unfortunately can't really reccomend a lawyer or mediator.  There is a guy that advertises in "The Lookout" who does family law mediation stuff, you could try there.  MFRC might be able to help with some issues, depending on the custody arrangements for the kids.  As for your pension, I'd have to say the best bet is pray she doesn't come after it.

Good Luck.

MM


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## Jimmy_D (7 Dec 2011)

Although i am not completely sure, but i have heard from some RMS clerks that they cannot touch your pension unless you have been together for a min of 10 yrs.


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## MJP (7 Dec 2011)

misratah500 said:
			
		

> Hey,
> 
> So my common law fiance has decided to leave me. We broke up October 21st while I was on deployment and I've had to come home to deal with it, but we still live together till she can find a place. I know that's messed up but I didn't want to put her out in the cold so to speak. She will be gone in January. Now I need help drawing up a separation agreement.
> 
> ...



Except for changing your status with your unit clerk there really isn't a role for the military in this.  Get a lawyer to draft up a separation agreement ASAP.  There are places you can get one from on the internet (http://divorceonline.ca/t/separationagreement.php) for much cheaper, but believe me a lawyer drafted one is worth the expense.  Why are you still reading this?  Get going....  :nod:


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## aesop081 (7 Dec 2011)

Call the Member Assistance Program. The can set you up, and pay for, a familiy mediator that will help you draw up a separation agreement. This will save you much trouble later.

The JAG cannot help you.


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## PMedMoe (7 Dec 2011)

Do a search for local family lawyers.  If you're both in agreement, the lawyer can do the paperwork required and have you both sign it.  Then you can bring a copy of the paperwork into the OR for them to process the military side of it (e.g. benefits, etc).

When I got divorced, I did my own paperwork and only had to pay for a "filing" fee.  That was in New Brunswick.  Things may be different for you in B.C.


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## MJP (7 Dec 2011)

CDN Aviator said:
			
		

> Call the Member Assistance Program. The can set you up, and pay for, a familiy mediator that will help you draw up a separation agreement. This will save you much trouble later.



Cool learn something new everyday...

They must not tell the combat arms folks to keep the payments down


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## aesop081 (7 Dec 2011)

MJP said:
			
		

> Cool learn something new everyday...
> 
> They must not tell the combat arms folks to keep the payments down



I was still a combat engineer in Gagetown when i did this. Saved me a ton of trouble when i got divorced. The separation agreement that was drafted became the basis of the divorce judgement.


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## Occam (7 Dec 2011)

AJAG will not get involved in any way, shape or form with domestic situations.

1.  You filled out a statutory declaration in order to have the relationship recognized; there will be a statutory declaration to complete to have it ceased to be recognized.  Bear in mind that this only carries weight with regard to CF benefits.  Don't do anything stupid like cease PSHCP, dental, or insurance coverage until you've got a signed divorce agreement which says you can.

2.  You'll need a civilian lawyer or mediator.  Like CDN Aviator said, CF Member Assistance Program may be able to help out in that regard on the mediator front.

3.  The MFRC may be able to point you to a civilian lawyer or mediator, but that's about all you can get from them.

4.  The only way you'll protect your pension is to get a signed, sealed divorce agreement in which she waives her rights under the Pension Benefits Division Act.  Until she waives rights to it, half of it is hers.


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## Michael OLeary (7 Dec 2011)

In addition to the advice above, get to the Orderly Room as soon as possible. Change your will, your NOK info and your Memorial Cross recipient selections.


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## Old and Tired (7 Dec 2011)

Hi there.  First of all, my husband has logged me in to answer your question.  I'm an RMS clerk at my unit.  I'm so sorry for what's happened, and I hope I can help you out.  The first thing you need to do is get your ass to your orderly room.  Remove your soon to be ex from your PEN form as your next of kin, and off your SDB as the beneficiary.  Then you can get your separation agreement from your lawyer.  Bring the agreement to your OR so they can take a copy and enter you as Separated in HRMS.  Your separation agreement should include all details of payments expected or your pension.  The AJAG can't help, but any civvy lawyer can do up a separation agreement.  Good on you for thinking of the MFRC.   I'm also our unit Family Rep, and the MFRC has a ton of resources that can help, including padres, social workers, and other professionals.  Your orderly room can tell you step by step what other docs they need, if I've missed anything.  Best of luck to you!


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## misratah500 (7 Dec 2011)

The member assistance people said they can only offer counselling not legal help. They couldn't even refer me to a lawyer. But I got some 1800 number for 3 hrs of free legal advice so I'm going to use that. 

As was mentioned earlier. I have to do up a seperate waiver to protect my pension apart from the seperation agreement?


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## Occam (7 Dec 2011)

No, there's no separate waiver, it's incorporated into the divorce judgement.


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## aesop081 (7 Dec 2011)

misratah500 said:
			
		

> The member assistance people said they can only offer counselling not legal help.



I know, that is what i said to you. A family mediator can assists you and your former spouse in drafting an agreement between the 2 of you on who gets what. Takes a big stress away and doesn't cost you like a lawyer would.


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## jeffb (7 Dec 2011)

Do not try and do the divorce on your own. When kids are in the picture you want to be 100% sure that you are covering your obligations and that there are no legal issues unresolved. Your pension is one thing but the financial and emotional implications of getting the custody agreement wrong can be much larger. I am sure many people here have seen all kinds of examples of custody agreements going south. I for one have a friend who had an unofficial custody agreement with his ex, a new guy comes on the scene and all of a sudden they are in another custody fight. It's great that she wants joint custody, if that's what you want, but it is much better to spend a little more money now, hire a lawyer and do this right then fight it out years from now while you are deployed somewhere.


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## misratah500 (7 Dec 2011)

I have just contacted a lawyer who is an ex Lt Col. JAG. So I think I'm good to go. I have retained his services and I will be meeting him for free consultation on Friday morning. 

He said that I do this on my own, and that we have to advice her to seek legal counsell or else the agreement could be overturned in court because she didn't seek help. 

He said that the separation agreements are never 100% watertight and that a judge can turn things over if they feel its too weighted towards my direction.  So he said we need to sit down with my 2010 tax return, current pay stub and we'll draft up an agreement and present it too her. 

Thanks everyone for your help. I hope this can be as painless as possible.


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## aesop081 (7 Dec 2011)

misratah500 said:
			
		

> I hope this can be as painless as possible.



Do yourself a favour and never say or think that again. It will be painful, even if not right away. It will be painful and you need to cover your ass at every turn.


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## GAP (7 Dec 2011)

A piece of advice.

Document everything, I mean EVERYTHING! Good, bad, unkn....what she said, what you said, what she did, what you did. you will not remember these things when accusations come your way....this way, on Dec x, xxxx you said xxxxxxx.....

There are thousands out there that wish they had. 

Guys tend to be generous and figure everything will work out. Few women end up thinking that way, despite what they say at the start. 

Protect yourself.


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## PMedMoe (7 Dec 2011)

Good advice, for the most part......



			
				GAP said:
			
		

> Guys tend to be generous and figure everything will work out. Few women end up thinking that way, despite what they say at the start.



Tell that to the woman who left the guy with everything, didn't go after his pension or CPP points _and_ pays child support.  Not _every_ woman is out to get her ex-spouse.


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## GAP (7 Dec 2011)

> Tell that to the woman who left the guy with everything, didn't go after his pension or CPP points and pays child support.  Not every woman is out to get her ex-spouse.



I agree 100%......there are some adults, both male & female out there that can have a rational discussion and come to logical conclusions regarding a marriage breakup, and I applaude them. 

Conversely, I have seen a whole wack of separations/divorces that started out on a level playing field and go south in a big way. For the most part, I've noticed the woman becoming bitter and vindictive for little reason that I could see.......but, and this is a big BUT......I didn't get to see both sides of it. 

 :2c:


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## PMedMoe (7 Dec 2011)

I'll give you that.   :nod:  

I've seen both sides become pretty bad.


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## Pusser (8 Dec 2011)

Jimmy_D said:
			
		

> Although i am not completely sure, but i have heard from some RMS clerks that they cannot touch your pension unless you have been together for a min of 10 yrs.



If you're not "completely sure," then don't make stupid and dangerous statements, particularly when they are wrong!  Any assets acquired during a relationship are up for adjudication.

The OP has found a lawyer and that's good.  No one should ever try to do this without good legal advice.  And don't go cheap on it.  Extra money spent on good lawyers is well worth the cost for future peace of mind.  I have witnessed too many folks go down because they tried this on their own or went cheap.

No, the AJAG cannot provide legal advice for these sorts of things.  However, they can and generally will provide general advice (e.g. "you need to get a civilian lawyer") and will often provide referrals, especially if you're looking for lawyers who understand the military.  Remember that the legal community (of which JAG lawyers are all a part) is pretty tight and they all know who does what and who does it best.  It costs you nothing to ask.


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## Occam (8 Dec 2011)

Jimmy_D said:
			
		

> Although i am not completely sure, but i have heard from some RMS clerks that they cannot touch your pension unless you have been together for a min of 10 yrs.



I, however, am completely sure that the info you got from those RMS clerks is 100% wrong.

I missed this post earlier.  The pensionable service while one is married (or common law) is eligible for division under PBDA whether it is one day, one year, or 10 years.  I have a ~$200 deduction from my monthly CFSA annuity to remind me of that for the remainder of my days....stubborn, greedy mare...but I'm not bitter.   ;D


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## misratah500 (8 Dec 2011)

Well I have discussed it with the lawyer over the phone and he said he will draft up an agreement for me. And then we have to notify her to get legal council. Then we present the agreement to her to read and sign. And possibly look over it with her legal council. 

I have to keep him on retainer, but it's an investment as far as I'm concerned. He also said that no separation agreement is 100% watertight and that a judge could throw it out if its slanted to heavily in my favour.


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## The Anti-Royal (8 Dec 2011)

Based on my personal experience with the process, and having been involved (peripherally) in the trials and tribulations of some peers and subordinates, I support your retention of a lawyer.  It's essential that any agreement be done right from the start and that it contain as much detail as possible.  Division of assets (and debts) accumulated during the "marriage", and custody of and access to children are usually the main sticking points.

I'd recommend that, once the parties have agreed to the form and content of the agreement, that it be brought to a judge for his or her sign-off thus turning it into a Court Order.  This can probably be done through a motion on consent (i.e., both parties agree).

Regarding pension, the Pension Benefits Division Act applies.  If your significant other was indeed considered to be a spouse under law, she has the right to 50% of the contributions made from the date you were "married" to the date of separation.  There's no ten-year caveat.

I used my lawyer as my staff officer.  I gave him my intent on all issues and insisted that he obtain my approval for all communications between him and counsel for my ex-wife before he sent them, just to make sure that my intent was being followed.  Always remember that you're the boss, not your lawyer.

Try your best to figure out on what matter(s) you will fight to the death, and tell your lawyer what it is/they are.  The rest are, in relative terms, fluff.

Lastly (and perhaps, most importantly), do your best to shelter your child from what's going on.  Don't badmouth Mom if there's any chance the child may hear (even second-hand).  If she does it to you, don't respond.  Document it, and if it gets bad enough, you may have a case for parental alienation (although the burden of proof is very heavy).  Kids need their parents to be adults.

Good luck to you.


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## Pusser (8 Dec 2011)

The Anti-Royal said:
			
		

> Based on my personal experience with the process, and having been involved (peripherally) in the trials and tribulations of some peers and subordinates, I support your retention of a lawyer.  It's essential that any agreement be done right from the start and that it contain as much detail as possible.  Division of assets (and debts) accumulated during the "marriage", and custody of and access to children are usually the main sticking points.
> 
> I'd recommend that, once the parties have agreed to the form and content of the agreement, that it be brought to a judge for his or her sign-off thus turning it into a Court Order.  This can probably be done through a motion on consent (i.e., both parties agree).
> 
> ...



Yes and no.  The PBDA is a starting point and in most situations will also be the end point.  For the most part it is a formula for equal division of the asset (generally 50% of the value of the pension earned during the period the couple was together - i.e. not necessarily 1/2 the total pension.  If you're only together for two years out of a 35 year career, the ex-spouse actually sees very little, but if you're married for your entire career, he/she basically gets half).  However, both parties can agree to waive the provisions of the PBDA and choose another formula that suits them.  Be very careful in choosing this option as it could lead to other problems further down the road.

On a side note, the ex-spouse does not receive a pension or any money that can be used right away.  Instead, an actuarial calculation is made and he/she is given a lump sum payment, which if invested properly, should provide an annuity (equal to what the pension payment would have been) payable at retirement age.  The ex-spouse is required to deposit it into a locked-in  RRSP until that point.  The member's CFSA annuity is then reduced accordingly for the rest of his/her life.


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## The Anti-Royal (8 Dec 2011)

Thank you, Pusser, for the clarification.

One more thing about pension division - the ex-spouse's portion of the divided pension must be deposited into a locked-in retirement savings vehicle, but she may choose to cash it out as soon as the $$ are dropped into the account.  She's required to pay the taxes, though.

If pension division is to happen, the "owner" of the pension must so apply.  There's a form for that (isn't there always?).


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## Occam (8 Dec 2011)

The Anti-Royal said:
			
		

> Thank you, Pusser, for the clarification.
> 
> One more thing about pension division - the ex-spouse's portion of the divided pension must be deposited into a locked-in retirement savings vehicle, but she may choose to cash it out as soon as the $$ are dropped into the account.  She's required to pay the taxes, though.
> 
> If pension division is to happen, the "owner" of the pension must so apply.  There's a form for that (isn't there always?).



The pension payout to the ex-spouse must be deposited to a locked-in vehicle until age 55.  That's why it is called "locked-in".  Even then, they can only draw an annuity.

Also, either spouse can apply for the pension split.  My lawyer told me to do nothing - which is precisely what I did.  If she had not applied for it, there was no obligation for me to make it happen.


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## The Anti-Royal (8 Dec 2011)

Learning is a lifelong process.  Thanks, Occam.


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## Occam (8 Dec 2011)

The Anti-Royal said:
			
		

> Learning is a lifelong process.  Thanks, Occam.



No problem.  I was simply tickled to hear from my lawyer that she would never be able to touch the principal or interest of the lump sum payout that she received.  It also explained why she desperately wanted me to pay her out in cash as part of the settlement, rather than do the pension split.

There was learning alright...I'm sure my lawyer's kids got a very nice education thanks to my stubborn, greedy mare darling ex.  But I'm not bitter!   ;D


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## The Anti-Royal (8 Dec 2011)

I feel ya, man (on both counts).

Why do people shell out so much money for a divorce?

Because it's worth it.


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## PMedMoe (8 Dec 2011)

Mine cost under $500.   ;D


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## misratah500 (12 Dec 2011)

So I saw a lawyer last week. He costs 250 an hour :facepalm:. But I think its going to be worth it. He said we can draft up an agreement that can be pretty water tight on my assets and pension. But he said I'm going to have to pay full child support even if we do 50/50 because she makes 0 and I make 90k. I have no problem with that. I'll probably save money actually by not having her under my roof. He said the no spousal support part could be iffy, if this ever went to court. But she doesn't want any so we put in no contest. I'll have it drafted up today. It will cost me around 750-1000 bucks. But it will be worth it.

In other news, she just got a job that will pay her around 30k a year. Thats good news for her and I as well. I think my payments will drop a bit because of that. Things are looking up. Just need her out of here now.


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## GAP (12 Dec 2011)

PMedMoe said:
			
		

> Mine cost under $500.   ;D



I didn't know hitmen came that cheap...... ;D


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## CountDC (12 Dec 2011)

not looking in the right places gap - a 40 and a carton will get it done if you're not too picky about the method. >


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## aesop081 (12 Dec 2011)

misratah500 said:
			
		

> I think my payments will drop a bit because of that.



Remember that child support payments are based on your salary alone, not hers. The ammount is decided based on the tables set by the federal government (based on the province you live in). If she gets a job, it will not change your child support payment at all.


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## Arctic Acorn (12 Dec 2011)

misratah500 said:
			
		

> So I saw a lawyer last week. He costs 250 an hour :facepalm:. But I think its going to be worth it. He said we can draft up an agreement that can be pretty water tight on my assets and pension. But he said I'm going to have to pay full child support even if we do 50/50 because she makes 0 and I make 90k. I have no problem with that. I'll probably save money actually by not having her under my roof. He said the no spousal support part could be iffy, if this ever went to court. But she doesn't want any so we put in no contest. I'll have it drafted up today. It will cost me around 750-1000 bucks. But it will be worth it.
> 
> In other news, she just got a job that will pay her around 30k a year. Thats good news for her and I as well. I think my payments will drop a bit because of that. Things are looking up. Just need her out of here now.



Best of luck to you. I separated from my ex about this time last year. I don't think there's too much I can add here that hasn't already been said (probably the best place you could ever go to ask about divorce advice is to ask a bunch of military folks). 

I will say this...I don't know how long the mandatory separation period will be for you two as you're in BC, but here in NS it's a year. It's going to be a long year for you both. Just keep a positive attitude about it, and no matter what happens try and be the bigger person about whatever happens. It sounds like you're on the right track.


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## misratah500 (12 Dec 2011)

What is a mandatory separation period? I've never heard of that and the lawyer didn't mention anything about that. She has said "no contest" to spousal support. She doesn't want any. But the lawyer seems to think some sort of spousal support will be awarded on paper. But if she doesn't want it, the courts can't make me pay it. Only she can actually go and complain its not getting paid. 

Were not married by the way, were common law with a 3 year old. I don't know if that separation period is for actual marriage or not? Can you clarify.


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## aesop081 (12 Dec 2011)

You're not married, don't worry about it. Most jurisdiction make you wait one year between separation and filing for divorce.


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## cupper (12 Dec 2011)

One sage piece of advice I learned when a former GF was in law school and starting out in practice. All divorce settlements start at 50/50. Whicch way the scales tip depends on how good your lawyer is relative to the other side.


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## Arctic Acorn (13 Dec 2011)

misratah500 said:
			
		

> What is a mandatory separation period? I've never heard of that and the lawyer didn't mention anything about that. She has said "no contest" to spousal support. She doesn't want any. But the lawyer seems to think some sort of spousal support will be awarded on paper. But if she doesn't want it, the courts can't make me pay it. Only she can actually go and complain its not getting paid.
> 
> Were not married by the way, were common law with a 3 year old. I don't know if that separation period is for actual marriage or not? Can you clarify.



Fair enough. I just quickly Googled this site (http://www.common-law-separation-canada.com/common-law-separation-Canada.htm) and got a bit more info...I didn't know that if you were Common Law the separation period didn't apply. That's a good thing...being 'separated' can sometimes be a bit of a negative label.


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## Springroll (15 Dec 2011)

I have the number of a good lawyer. He is on the pricey side, but in the end my ex-husband could not touch my pension.
If you want it, PM me and I will give it to you.

Go to the BOR to change your status. I had to do a stat dec before they would change my status, but it is worth it in the end.

Best of luck


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## teenwolf (29 Dec 2011)

Pensions, savings accounts and spousal support (aka equalization) are not under the purview of the CF. Nor is child maintenance. All fall under Family Law. Other than getting her removed as a spouse/dependent/beneficary on your CF pers file, your orderly room can not provide the services you require. You need a Family Law lawyer. And word to the wise: ensure she has independent legal advice before signing any agreement. Otherwise, the agreement may not stand if challenged in court at a later date.


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## teenwolf (29 Dec 2011)

misratah500 said:
			
		

> Were not married by the way, were common law with a 3 year old. I don't know if that separation period is for actual marriage or not? Can you clarify.



Common law isn't the same as marriage. Different laws apply and differ from each province. The following link may help you out: http://www.common-law-separation-canada.com/

A separation period only exists for divorce. With common law, the relationship ends when you split up.


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