Do You Have to File Anything to Separate in Saskatchewan?

Many people expect that separating requires a form, a court filing or an official certificate. When you are married or living common-law and the relationship has ended, it is natural to ask what, if anything, you must file.

This article explains how separation is treated in the Divorce Act, how it differs from filing for divorce, and the practical steps that matter in Saskatchewan. It is general information, and a lawyer can confirm how it applies to you.

This article covers the law of Saskatchewan.

Separation is about how you live, not a filing

The Divorce Act treats spouses as living apart for any period when they lived apart and one of them had the intention to live separate. The test is about how you lived and what one of you intended. Whether any form or filing is useful in your situation depends on the facts, so it is worth confirming with a lawyer.

Spouses can even be separate and apart while living in the same home, if one has the intention to live separately. So the key step is making the decision and acting on it. Whether any other document is useful for your situation, such as a written agreement, is something a lawyer can advise on.

Separating is different from divorcing

A divorce is what ends a marriage. The only ground is breakdown of the marriage, which is established if the spouses have lived separate and apart for at least one year immediately before the divorce is determined and were living apart when the proceeding began, or if the other spouse has committed adultery or treated the applicant with physical or mental cruelty that makes continued cohabitation intolerable. You cannot rely on your own adultery or cruelty. The one-year separation must be complete when the divorce is determined, not when you file.

That is when paperwork begins. In a Saskatchewan divorce, Part 15 of the King's Bench Rules governs family proceedings, and the forms include the Petition (Form 15-8A). The Petition form states it is to be served within 6 months after it is issued unless ordered otherwise. For an uncontested divorce, the Court of King's Bench offers a free Self-Help Divorce Kit, requested from the Family Law Information Centre at 306-787-5837 or 1-888-218-2822.

If you are not married, divorce is not the tool. Common-law couples do not need a divorce, but other rules still apply, as described below.

Steps that actually matter after separation

• Note the date. If you later divorce, the one-year separation is counted from when you lived apart with the intention to live separate. A short reconciliation of up to 90 days, made mainly to reconcile, does not end the separation period.
• Parenting. Saskatchewan uses decision-making responsibility and parenting time instead of custody and access since March 1, 2021. The Children's Law Act, 2020 covers unmarried parents and married parents not seeking divorce. Parents who have not fully agreed must complete a parenting course.
• Child support. The starting point is the table amount for the paying spouse's province plus any special or extraordinary expenses. Where each parent has at least 40% of parenting time, the amount is set under section 9 using both parents' table amounts plus the increased costs of shared care. A court can also depart from the table amount where the payor's income is over $150,000, or for undue hardship.
• Spousal support. A court can order lump-sum or periodic support, looking at each spouse's condition, means, needs and circumstances.
• Property. Under The Family Property Act, family property is generally distributed equally unless that would be unfair and inequitable. For unmarried spouses, the Act applies if they cohabited continuously for not less than two years.

Rules about time limits for property claims and about pensions were not covered here, so ask a lawyer promptly about deadlines in your situation.

Your will and safety

On divorce, a gift to a former spouse and their appointment as executor are revoked unless the will says otherwise. For unmarried spouses this happens after they have ceased cohabiting in a spousal relationship for at least 24 months. Separation alone does not appear in that rule, so you may want to update your will sooner rather than wait.

If you are not safe, you do not need to wait for a divorce to act. A designated justice of the peace can grant an emergency intervention order without notice if satisfied interpersonal violence occurred and the matter is urgent. It can give exclusive occupation of the residence regardless of ownership and bar contact.

What to do next

• Write down the date you began living separate and apart.
• Gather financial records, including income, debts and property.
• List parenting questions you need to settle for the children.
• Consider mediation. If you end up in court, family dispute resolution must be attempted by the close of pleadings, although you can apply to the court for an exemption where there has been interpersonal violence, the other parent has abducted a child, or there is other urgency.
• Review your will and beneficiary designations.
• Speak with a lawyer about your own situation before signing any agreement.

Frequently asked questions