Dating During Separation in Ontario: Legal Risks

Many people separate and then wonder whether a new relationship will hurt them in court. Friends and family often have strong opinions, and some of them are based on old ideas about blame.

This article explains how Ontario law generally treats dating during separation. The answer depends on your situation, especially whether you have children and whether you are still living with your former partner.

Fault is mostly not the issue

The only ground for divorce is breakdown of the marriage. One way to show it is that the spouses lived separate and apart for at least one year before the divorce is decided. A divorce based on adultery or cruelty can be applied for at any time, without the one-year wait.

How fault fits into money questions depends on the type of claim you are dealing with, so it is worth confirming with a lawyer. When a court sets spousal support in a divorce case, it must not consider either spouse's misconduct in the marriage. Dating after separation is therefore not a factor in support under that Act.

Property works on numbers rather than blame. For married spouses, each spouse works out their net family property, and the spouse with the larger figure pays half the difference. Common-law partners are treated differently, as explained below. A court can divide property unequally only in very special situations, where an equal split would be extremely unfair.

Dating and your children

In a proceeding under the Divorce Act, past conduct is left out of the best-interests analysis unless it is relevant to the person's ability to parent or have contact with the child. How this applies if you are not in a divorce proceeding depends on your situation, so it is worth confirming with a lawyer. Thinking about how and when your children meet a new partner is a practical step that can help them adjust.

Family violence is treated differently. The court must consider any family violence and its impact, and conduct counts as family violence whether or not it is a criminal offence.

• In a Divorce Act proceeding, the parties must, as far as they are able, protect children from conflict arising from the proceeding.
• Children are not expected to choose between their parents, and should be told the separation does not mean anything is wrong with them.
• Under the Divorce Act, parenting time should give the child as much time with each spouse as is consistent with the child's best interests.
• Think about timing: introducing a new partner slowly gives children space to adjust.

Common-law status and new obligations

A new relationship can create legal consequences of its own over time. Spousal support can be claimed by partners who lived together as a couple for at least three years, and by partners in a relationship of some permanence, for any length of time, who had a child together.

Common-law couples have no legal duty to split property acquired while living together. Property generally belongs to the partner who bought it, and partners can set their own property rights in a cohabitation agreement. A cohabitation agreement must be signed by both parties in front of a witness, who must also sign.

If you are still married to your former spouse, you remain legally married until a divorce takes effect. A divorce usually takes effect on the 31st day after the judgment granting it. Whether a particular new arrangement affects an existing claim depends on the facts, so speak to a lawyer before moving in with someone.

Getting back together, and online conduct

If you reconcile for a short time, it does not necessarily restart the clock. Living together again does not interrupt the one-year separation if it lasted no more than 90 days in total and its main purpose was reconciliation.

Be careful with your former partner's accounts and conversations. Fraudulently and without colour of right getting into a computer system or service, which can include an ex's email or social media accounts, is an offence. Knowingly intercepting a private communication with a device is also an offence, but it is not an offence if you have the consent of the person who sent it or its intended recipient, and a participant recording their own conversation falls within that exception. Checking a new partner's or ex's accounts is risky, so get advice first.

What to do next

• Write down your separation date and where each person has been living.
• Keep new-partner introductions to your children calm and gradual.
• Avoid posting about your ex or the court case on social media.
• Do not access your ex's email, phone or accounts.
• Before moving in with a new partner, ask a lawyer how it might affect support or property.
• Try negotiation or mediation where appropriate, since the parties must try to resolve their issues through a family dispute resolution process where appropriate.

Frequently asked questions