Can You Get Divorced While Pregnant in Ontario?

Finding out you are pregnant around the time your marriage is ending can make everything feel urgent at once. You may wonder whether you can start a divorce now, whether you have to wait for the baby, and how support and parenting will work for a child who is not born yet.

This article explains how the Ontario divorce process generally works and where a pregnancy can matter. It is general information, not legal advice. Some questions, especially about legal parentage, depend heavily on your facts and are best confirmed with a lawyer.

Does a pregnancy stop you from divorcing?

The tests an Ontario court applies to a divorce are about where you live and how long you have been separated. An Ontario court can hear a divorce only if at least one spouse has been habitually resident in the province for at least one year immediately before the proceeding starts. The only ground for divorce is breakdown of the marriage, which is established when the spouses have lived separate and apart for at least one year immediately before the divorce is decided.

Neither test depends on whether a spouse is pregnant. In practice, the one-year separation period often means the baby will be born before a divorce can be granted. That makes it sensible to plan for support and parenting early, rather than waiting for the divorce itself.

How the timeline usually fits together

A divorce does not take effect the moment a judge decides it. A divorce order is effective 31 days after it was made. The court will also not grant a divorce without the original marriage certificate, although a Form 36 affidavit can explain why you cannot provide it, and it cannot grant the divorce until the Central Registry of Divorce Proceedings Clearance Certificate has been received.

The court also has a duty to satisfy itself that there is no possibility of reconciliation, unless the circumstances make that inappropriate.

Support and parenting when a baby is expected

Before granting a divorce, the court must be satisfied that reasonable arrangements have been made for the support of any children of the marriage. On application, the court may order a spouse to pay support for a child of the marriage. If a baby is born before your divorce is finalized, this is a good reason to deal with child support in the same case rather than leaving it for later. Exactly how an unborn child or a child born after separation is treated depends on the facts, so confirm this with a lawyer.

Spousal support is a separate question. The court looks at each spouse's condition, means, needs and circumstances, including the length of the relationship, what each spouse did during it, and any existing order, agreement or arrangement about support. A pregnancy can affect a person's ability to work, but how much weight it carries depends on the whole picture.

For parenting, the court considers only the child's interests and gives primary consideration to the child's physical, emotional and psychological safety, security and well-being. Factors include the child's needs and stability, relationships with each parent, each parent's willingness to support the child's relationship with the other, history of care, plans for care, ability to cooperate, and family violence. A child should have as much time with each spouse as is consistent with the child's interests. Spouses must also, to the best of their ability, protect a child from conflict arising from the proceeding.

Who counts as a legal parent of a baby, and how that is decided when a child is born during or after a separation, depends on the facts. It is worth getting advice on that point before you assume anything.

Temporary orders, property and safety

If you cannot wait a year for answers, you can ask for a temporary order. Parties commonly ask for temporary orders on child or spousal support, parenting schedules, travel with a child, or who lives in the family home, and a judge may make one at the end of a motion and it stays in place while the case continues. Generally, a party must attend a case conference first, with exceptions for urgency, such as an immediate safety risk, and hardship, such as needing support for basic living conditions. Bringing a motion too early when that was not necessary can lead to a costs order against you.

Property is calculated using the separation date, not the divorce date. Net family property is the value of property at separation, minus debts and excluded property, less the same net value at the date of marriage, and the spouse with the larger amount pays half the difference as an equalization payment.

If you are afraid for your safety, a restraining order is available if you were married or lived together for any period, or have a child together. The province lists safety planning steps such as opening a bank account in your own name, saving money, gathering identification and documents, and packing an emergency bag. Contacts include 911, the Assaulted Women's Helpline, the Victim Support Line, 211 and Family Court Support Workers.

• Temporary orders can cover support, parenting schedules and who lives in the home.
• A married person can ask the court for exclusive possession of the family home, even if the other spouse owns it.
• For a restraining order, an urgent motion can be brought without notice where the other person's whereabouts are unknown, there is immediate danger of harm or removal of children from Ontario, or notice could have serious consequences, and the other person is served afterward.

What to do next

Pregnancy is a time to avoid rushed decisions. A few practical steps will put you in a stronger position whatever you decide.

• Write down the date you and your spouse separated, and keep records that show it.
• Gather your marriage certificate, identification, income records and statements for accounts, debts and property.
• Note your due date and any medical or work limits that affect your income.
• Think about a realistic interim plan for housing, money and care of the baby.
• If safety is a concern, use the safety planning contacts above before you act.
• Speak with a family lawyer about parentage, support and timing, because those answers depend on your facts.

Frequently asked questions