Date of Separation in Ontario: How It's Set and Why It Matters

People often ask for the exact date their relationship ended. It can feel like a small detail, but in Ontario that one date can affect your divorce, how your property is valued, whether you can claim support and how you report your status to the tax authorities.

Different laws use the date in different ways, and the rules are not identical across them. This article walks through the main ones in plain language so you know what to record and when to talk to a lawyer.

What counts as living separate and apart

For a divorce, spouses are treated as having lived separate and apart for any period during which they lived apart and either of them intended to live separate and apart. Only one spouse needs to have that intention.

This means you do not need your spouse to agree on a date. It also means that the date is usually tied to when you lived apart and when at least one of you decided the relationship was over. If you and your spouse remember it differently, it is worth sorting out early.

Some couples separate but still live in the same house. Justice Canada recognizes this happens and says a lawyer can explain the factors courts consider when deciding whether spouses are separated. If that is your situation, get advice before you assume a date.

Divorce: the one-year wait and its exceptions

Breakdown of a marriage is established if the spouses have lived separate and apart for at least one year immediately before the court decides the divorce, and were living separate and apart when the proceeding started.

• Adultery or cruelty: breakdown can also be established without the one-year separation if the other spouse committed adultery, or treated the spouse with physical or mental cruelty that makes continued cohabitation intolerable.
• Reconciliation attempts: the one-year period is not interrupted if the spouses resume cohabitation for one period, or several periods totalling, not more than 90 days with reconciliation as the primary purpose.
• Justice Canada adds that spouses can live together for up to 90 days, before or after filing, to try to reconcile, and if it does not work out the divorce can continue as if they had not spent the time together.
• Incapacity: a separation period is not interrupted only because a spouse becomes incapable of forming an intention to continue living separate and apart, if it appears to the court that the separation would probably have continued.

Dividing property: the valuation date

For dividing family property, the valuation date is the earliest of several dates, the first being the date the spouses separate and there is no reasonable prospect that they will live together again. Ontario's guidance says property you owned at separation is valued as of the day you separated.

When married spouses separate, the spouse whose net family property is smaller is generally entitled to one-half of the difference between the two net family properties. A court may award more or less than half if equalizing them would be unconscionable, and one factor it considers is a spouse's intentional or reckless depletion of their net family property. Net family property is the value of what a spouse owns on the valuation date after deducting debts and other liabilities, so debts at separation such as credit cards, car loans and the remaining mortgage reduce it.

Because values are fixed as of that date, an unclear separation date can change the numbers. Some property is treated differently: property acquired during the marriage by gift or inheritance from a third person is not included in net family property, though this exclusion does not apply to a matrimonial home.

Time limits that run from separation or divorce

An application for equalization cannot be brought after the earliest of two years after the day the marriage ends by divorce or judgment of nullity, six years after the day the spouses separate with no reasonable prospect of resuming cohabitation, or six months after the first spouse's death.

A court may, on motion, extend a time limit in the Family Law Act if there are apparent grounds for relief, the delay was incurred in good faith and no person will suffer substantial prejudice. Do not count on an extension.

For unmarried partners, the picture is different. Ontario guidance says common-law couples are not legally required to split property acquired while living together, and items generally belong to whoever bought them. For support claims, the Family Law Act's definition of spouse also covers two unmarried people who have cohabited continuously for at least three years, or who are in a relationship of some permanence and are the parents of a child, so the date cohabitation ended matters. Cohabit means to live together in a conjugal relationship.

Taxes, benefits and wills

The CRA says to report a separation only after you have been separated for more than 90 days because of a breakdown in the relationship, and the effective date of separated status is the day you started living apart. A marital status change must be reported by the end of the month after the month the status changed. For common-law status, the 12 continuous months of living together includes any period you were separated for less than 90 days because of a relationship breakdown.

Wills are also affected. Since January 1, 2022, gifts to a spouse in a will, and the spouse's appointment as executor, are revoked if the spouses were separated at the testator's death. Separated means living separate and apart because of marriage breakdown at death, plus either three years apart immediately before death, a valid separation agreement, a court order settling their affairs, or a family arbitration award.

With no will, a separated spouse, determined by the same tests, is not entitled to a share of the estate where the separation event occurred on or after January 1, 2022. If you have not yet updated your will, it is worth doing so.

What to do next

• Write down the date you began living apart and the date at least one of you decided the relationship was over.
• Keep dated evidence: messages, emails, lease or moving records, and changes of address.
• Note any attempts to reconcile, with dates, so you can show they stayed within the 90-day limit.
• Record your debts and assets as of that date.
• Diarize the equalization deadline and your CRA reporting date.
• Review your will and talk to a lawyer if you live under the same roof or if the date is disputed.

Frequently asked questions