canada divorce family-law
In a marriage, can one spouse just run away and declare this a &quot;separation&quot;?
<p>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. </p>

<p>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. </p>

<p>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.</p>

<p>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.</p>

<p>The relevant law is national, but the relevant court is part of the provincial court system.</p>

<p>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.</p>

<p>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.</p>

<p>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).</p>

<blockquote>
  <p><a href="http://laws-lois.justice.gc.ca/eng/acts/C-46/section-215.html" rel="noreferrer">§ 215</a> (1) Every one is under a legal duty . . . (b) to provide
  necessaries of life to their spouse . . . </p>
  
  <p>(2) Every one commits an offence who, being under a legal duty within
  the meaning of subsection (1), fails without lawful excuse, <strong>the proof
  of which lies on him</strong>, 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 . . . </p>
  
  <p>(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.</p>
  
  <p>(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.</p>
</blockquote>

<p>Canadians call this crime <a href="http://www.justice.gc.ca/eng/rp-pr/cj-jp/fv-vf/elder-aines/def/p212.html" rel="noreferrer"><strong>criminal neglect</strong></a>. Some interpretative material and case law is provided <a href="https://en.wikibooks.org/wiki/Canadian_Criminal_Law/Offences/Failing_to_Provide_the_Necessities_of_Life" rel="noreferrer">here</a>, although all of the easily accessible case law cited at the source involves child neglect rather than spousal neglect.</p>

<p>More interpretations of the statute and procedural issues are explored <a href="http://criminalnotebook.ca/index.php?title=Failing_to_Provide_the_Necessities_of_Life_(Offence)&amp;mobileaction=toggle_view_mobile" rel="noreferrer">here</a>. Notably, the summary offense statute of limitations is six months.</p>

<p>Under the statute: </p>

<blockquote>
  <p>"Necessaries of life" are necessaries that "tend to preserve life and
  not necessaries in their ordinary legal sense".</p>
</blockquote>

<p>According to <a href="https://www.canlii.org/en/bc/bcpc/doc/2012/2012bcpc195/2012bcpc195.html" rel="noreferrer">a case</a> involving failure to provide medical care to a child who was also physically abused. Other cases have held that:</p>

<p>Where the duty is found, the crown must prove:<a href="https://en.wikibooks.org/wiki/Canadian_Criminal_Law/Offences/Failing_to_Provide_the_Necessities_of_Life" rel="noreferrer">3</a></p>

<blockquote>
  <p>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.</p>
  
  <p>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.</p>
</blockquote>

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

<p>The lion's share of the cases involve what could be called child neglect (<a href="https://ablawg.ca/2016/05/24/who-are-the-parents-of-the-nation-thoughts-on-the-stephan-case-and-section-215-of-the-criminal-code/" rel="noreferrer">about half of the reported cases</a>) or <a href="http://www.advocacycentreelderly.org/appimages/file/Failing%20to%20Provide%20the%20Necessaries%20of%20Life%20is%20a%20Crime.pdf" rel="noreferrer">elder abuse</a>, <a href="http://www.cba.org/cba/cle/PDF/ELD09_Allan_paper.pdf" rel="noreferrer">not infrequently</a> 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.)</p>

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

<p>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.</p>

<p>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.</p>

<p>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 <a href="https://www.courts.ca.gov/1000.htm" rel="nofollow noreferrer">civil</a> in Canada.</p>

<p>Which is not to say it can't have legal consequences the <a href="https://laws-lois.justice.gc.ca/eng/acts/F-1.4/FullText.html" rel="nofollow noreferrer">Family Orders and Agreements Enforcement Assistance Act</a> 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.</p>

<p>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.</p>

<p><strong>Edit:</strong> As  Michael Seifert pointed out in the comments <a href="https://laws-lois.justice.gc.ca/eng/acts/C-46/page-51.html#h-119680" rel="nofollow noreferrer">sec. 215</a> of the Criminal Code - "Duty of persons to provide necessaries" could apply here. Which of course <em>would</em> 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 <a href="https://law.stackexchange.com/questions/23717/in-a-marriage-can-one-spouse-just-run-away-and-declare-this-a-separation/23726#23726">here</a> (thanks again to Michael for pointing this out!)</p>
