Can You Get a Divorce in Ontario Without Waiting a Year?

You have separated, or you are about to, and you want to know whether you must sit and wait a full year before you can divorce. It is one of the most common questions people ask, and the answer has a main rule and a few exceptions.

This article explains how the year is counted, what happens if you try to reconcile, when no wait is needed, and what the court checks before it grants a divorce. It is general information about Ontario and federal law, not advice on your situation.

The usual rule: one year living separate and apart

Under the federal Divorce Act, the only ground for divorce is breakdown of the marriage. The most common way to show breakdown is that you and your spouse have lived separate and apart for at least one year before the divorce is decided, and were living separate and apart when the proceeding started.

That wording matters. The year must have passed by the time the divorce is decided, but it does not have to have passed when you start. You can begin the application before the year is up, as long as you were already living separate and apart when it started. If you rely on the separation route, the divorce cannot be granted until the full year is complete, unless the adultery or cruelty exception described below applies.

Only legally married couples can divorce. An ending of a common-law relationship is not a divorce.

How the year is counted

You are treated as having lived separate and apart for any period during which you lived apart and either spouse intended to live separately. So one spouse's decision to end the relationship is enough. Your spouse does not have to agree, and you do not both need to announce it on the same day.

Trying to save the marriage does not necessarily wipe out your progress. The one-year period is not treated as interrupted if you resumed living together for one or more periods totalling not more than 90 days, mainly to try to reconcile. If you live together again for longer, or not mainly to reconcile, the count may be affected, so it is worth getting advice before relying on this.

• Keep a note of the date one of you decided the relationship was over.
• Keep a note of the date you began living apart.
• Write down the dates of any attempt to live together again, and how long each lasted.

Separate, but under the same roof

Some couples separate but keep living in the same house, often for financial reasons or for the children. Federal guidance recognizes this happens and says a lawyer can explain what courts may consider when deciding whether spouses are separated.

There is no simple checklist you can tick off. Courts look at the facts of each case, so if you are in this situation and the date matters, it is worth confirming your position with a lawyer before you file.

When no wait is needed, and what the court checks

There is an exception to the one-year wait. Breakdown of the marriage is also shown if the spouse the proceeding is brought against has, since the marriage, committed adultery or treated the other spouse with physical or mental cruelty that makes continued cohabitation intolerable. These grounds usually mean more evidence and a more contested case, so many people still choose the one-year route.

Whatever the ground, the court has checks to make before it grants a divorce:

• Before considering the evidence, it must satisfy itself that there is no possibility of the spouses reconciling, unless it would clearly be inappropriate to do so.
• It must be satisfied there has been no collusion, and that reasonable arrangements have been made for the support of any children of the marriage.
• If the divorce is based on adultery or cruelty, it must also be satisfied that the spouse bringing the case has not condoned or connived at it.

Living together again for 90 days or less, mainly to reconcile, is not condonation. Child support arrangements are a common reason a divorce is delayed, so it helps to have them sorted out early.

When the divorce takes effect, and why your separation date matters

A divorce takes effect on the 31st day after the day the judgment granting it is made. The court may order an earlier effective date if special circumstances justify it and the spouses agree and undertake that no appeal will be taken, or any appeal has been abandoned. Once it takes effect, the divorce dissolves the marriage and has legal effect throughout Canada, and a certificate can be requested.

Your separation date also matters beyond the divorce. For property equalization under the Family Law Act, the valuation date is the earliest of several dates, and one of them is the date you separate with no reasonable prospect of resuming cohabitation. The spouse with the smaller net family property is generally entitled to one-half of the difference between the two. Because of this, the date you separate can affect what is counted and when.

What to do next

• Write down your separation date and how you know it.
• List any periods you lived together again after separating, with dates.
• Gather your marriage certificate and details of any children and their support arrangements.
• List major assets, debts, RRSPs and pensions, since property is often tied to the separation date.
• Speak with a lawyer if you are living under the same roof, if you want to rely on adultery or cruelty, or if you are unsure when your year began.

Frequently asked questions