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My friend’s father ran away from his wife after 30 years of marriage. He left her with all of the debts to pay and no income to support.

He then hired a lawyer sending her a wish to negotiate a separation agreement after 2 months of leaving her hanging. As a result, she has fallen very sick because of all of the pressure.

My main question would be what legally constitutes a "separation". Can one spouse just run away and declare this a "separation"? This is occurring in Toronto, Canada.

  • It depends entirely on the jurisdiction, but since we cannot give legal advice here, her first course of action should be to find a divorce lawyer in her jurisdiction. If you would like to ask about divorce law generally, you can edit your question. – phoog Nov 1 '17 at 20:54
  • hi @phoog thanks. I've edited the question. – Dr. Ikjyot Singh Kohli Nov 1 '17 at 20:57
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    But you still haven't specified the jurisdiction. – phoog Nov 1 '17 at 20:59
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    I'm not sure if it is a crime, but you can't just "run away" from your bills and obligations. Your spouse is entitled to your money (even if your bank accounts are separate) and your bills, even if they are in your spouses name, are still marital obligations. – Ron Beyer May 28 at 13:17
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A spouse in Toronto, Canada can seek a divorce at any time by filing a petition in the appropriate court in Ontario Province, although it is only granted after the parties have been separated for at least one year (or sooner if adultery or domestic violence are present). A divorce court can order temporary support during the pendency of the case.

The relevant law is national, but the relevant court is part of the provincial court system.

Abandonment or separation from a spouse is not a concept recognized by criminal law in Canada, and abandonment has no relevance to entitlement to a divorce in Canadian divorce law which simply asks if parties are currently living together or not as a factual matter (although it may go to need for maintenance payments or access to property). If they are not living together, then they are separated, something that requires no court approval.

Upon divorce, and during a separation (in fact) of the spouses prior to a divorce, a Court can enter orders regarding property division or maintenance (and child support, if relevant) if the husband can be served with process, and as to any property that the Court can gain control over.

UPDATE: Contrary to my previous answer to this question, apparently there is a relevant criminal statute that I previously failed to locate because it was in part of the criminal code where I didn't expect it to be, which states in the pertinent part (the language in bold has been held unconstitutional and has no legal effect).

§ 215 (1) Every one is under a legal duty . . . (b) to provide necessaries of life to their spouse . . .

(2) Every one commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse, the proof of which lies on him, to perform that duty, if (a) with respect to a duty imposed by paragraph (1). . . (b), (i) the person to whom the duty is owed is in destitute or necessitous circumstances, or (ii) the failure to perform the duty endangers the life of the person to whom the duty is owed, or causes or is likely to cause the health of that person to be endangered permanently . . .

(3) Every one who commits an offence under subsection (2) . . . (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or (b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

(4) For the purpose of proceedings under this section . . . the fact that a spouse . . . is receiving or has received necessaries of life from another person who is not under a legal duty to provide them is not a defence.

Canadians call this crime criminal neglect. Some interpretative material and case law is provided here, although all of the easily accessible case law cited at the source involves child neglect rather than spousal neglect.

More interpretations of the statute and procedural issues are explored here. Notably, the summary offense statute of limitations is six months.

Under the statute:

"Necessaries of life" are necessaries that "tend to preserve life and not necessaries in their ordinary legal sense".

According to a case involving failure to provide medical care to a child who was also physically abused. Other cases have held that:

Where the duty is found, the crown must prove:3

the culprit acts or omissions which led to the failure to provide necessaries of life were a marked departure from the conduct of a reasonably prudent person in similar circumstances, and it was objectively foreseeable that the failure to provide necessaries would lead to a risk of danger to the life or permanent endangerment to the health of the person to whom the duty is owed.

The accused's conduct is to be considered on an objective standard and so the individual characteristics and experiences of the accused are not relevant.

Neither abandonment nor separation are concepts involved in the statute which merely involves a "failure to provide."

The lion's share of the cases involve what could be called child neglect (about half of the reported cases) or elder abuse, not infrequently involving an adult child and a severely unhealthy dependent parent. (These cases also hold that the spouse's duty to provide necessities takes priority over the child's.)

"Lawful excuses" are a matter of common law and are not itemized in the statute.

The decision to charge the crime as a "summary offense" (basically a misdemeanor) or an "indictable offense" (basically a felony) appears to be up to the prosecutor and there is no mandatory minimum sentence.

In a couple hours of searching, I have not been able to locate any Canadian case under Section 215 with a fact pattern similar to that of the question. The elder abuse cases don't tend to involve spouses and involve neglect of personal care that a person cannot provide themselves or a lack of medical care, by and large. So, it seems that the conclusion, that one should bring a divorce action, still appears to be the correct one. It seems unlikely that this situation would be prosecuted when a civil action could secure another result. Also, incarceration of a spouse will ordinarily prevent the spouse from earning any income.

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    Hi. Thanks for this. So, must a separation be done through filings, or can a spouse just walk out, and deem that separation? – Dr. Ikjyot Singh Kohli Nov 2 '17 at 3:40
  • @Dr.IkjyotSinghKohli There are no legal remedies without a court filing. Separation can exist as the reality but this doesn't solve any of her problems. What benefit would you think that one gets from being "separated" in fact in the absence of legal action? – ohwilleke Nov 2 '17 at 19:09
  • @Dr.IkjyotSinghKohli Canada does not have a crime of abandonment or desertion or non-support of a spouse. laws-lois.justice.gc.ca/eng/acts/C-46 – ohwilleke Nov 13 '17 at 23:06
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    Hi. Thanks for the helpful answers. I’m just confused because I’m the criminal code it is written it is criminal to not provide care to a spouse in need: laws-lois.justice.gc.ca/eng/acts/C-46/… – Dr. Ikjyot Singh Kohli Nov 14 '17 at 15:20
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    @sleske in case you haven't seen the edit, there is indeed a similar statute in Canada (concerning "necessaries of life"), but failing to provide them to a spouse is only an offence when the spouse "is in destitute or necessitous circumstances" or when the failure "endangers the life of the [spouse], or causes or is likely to cause the health of that person to be endangered permanently." So running away from one's spouse wouldn't seem to violate this section until the spouse runs out of cash and begins to have trouble buying food, or until the spouse is evicted. – phoog Jul 16 at 14:38
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No - it's not a "crime" in the sense that it is not covered by the criminal code in Canada. It falls under "Family law" which is considered civil in Canada.

Which is not to say it can't have legal consequences the Family Orders and Agreements Enforcement Assistance Act sets out actions and sanctions that the Canadian government can take against those who violate a court order instructing them to make support payments. This can include such things as garnishing wages/state payments and even suspending driver's licenses.

If they "run away" as you put it and aren't making payments on things like a mortgage which is in their name (wholly or partly) then this would be covered under normal civil debt proceedings the same as if they stayed and didn't pay.

Edit: As Michael Seifert pointed out in the comments sec. 215 of the Criminal Code - "Duty of persons to provide necessaries" could apply here. Which of course would make it a criminal matter although it doesn't seem to really have been used in this way. More details (and links to case law etc) in ohwilleke's answer to a similar question here (thanks again to Michael for pointing this out!)

  • My impression is that most mortgages include language that all signers are "jointly and severally liable" for the debt, meaning that the bank can go after any one of them for the whole amount. Unfortunately, this means that the bank may find it easier to dun the person who "stays behind", even though they may be faultless in the whole mess. – Michael Seifert May 28 at 13:48
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    Also, note ohwilleke's answer here. That answer says that there are statutes in Ontario that could in principle be used to prosecute spousal neglect/abandonment. However, there is not much (if any) case law supporting this application; the statutes in question are mainly used to prosecute elder abuse and child neglect. – Michael Seifert May 28 at 13:56
  • @MichaelSeifert Interesting, thanks for that. yeah there could be an argument that they are failing "to provide necessaries of life" I hadn't thought in that direction. And that's definitely part of the criminal code! – motosubatsu May 28 at 14:05
  • @MichaelSeifert The bank can certainly go after the person that stays behind if they so choose. But it may well be open to that person to sue the person who has run away to pay their share. – Martin Bonner supports Monica Jul 16 at 10:17
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What legally constitutes a separation?

The action or state of moving or being moved apart but still connected.

Separation is not same as divorce. So the husband is still considered to be married but separated. The court will approve the separation agreement allowing the couples to live apart and slowly try to resolve conflict and fix the marriage.

Divorce ends the marriage completely and will allow both parties to enter into intimate relationships and remarry, whereas separation does not allow this.

Can one spouse just run away and declare this a "separation"?

No. In order for a separation to be declared the court first must approve the separation.

Before you can legally live apart you have to enter into a court declared separation agreement, not the other way around.

What the man did in the description is not separation, it is abandonment.

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    "Before you can legally live apart you have to enter into a court declared separation agreement, not the other way around." This is just not true. Canadian law does not require spouses to live with each other in the absence of court approval. – ohwilleke Nov 6 '17 at 15:23

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