Do You Have to Divorce After Separating in Ontario?

Many people separate and then stay in limbo for months or years. They are living apart, but nothing has been filed, and they wonder whether they are doing something wrong.

The short answer is no, you do not have to divorce. This article explains what being separated but still married means in Ontario, how the one-year rule works if you do decide to divorce, and what to watch for in the meantime.

Divorce is a choice, not a requirement

Divorce is not required after separating. Provincial law deals with support and parenting for married couples who separate but do not apply for a divorce, and for unmarried couples. In Ontario that means the Family Law Act and the Children's Law Reform Act.

So you can sort out parenting, child support, spousal support and property while remaining legally married. A divorce ends the marriage itself. A divorce usually takes effect on the 31st day after the judgment granting it.

How the one-year rule works

The only ground for divorce is breakdown of the marriage. One way to show breakdown is that the spouses lived separate and apart for at least one year before the divorce is decided and were living apart when the proceeding started.

You do not have to wait a year to apply, as long as you are living apart when you apply. The year must have passed before the divorce is granted.

Why some people stay married

There are many personal reasons for staying married after separating, such as religion, hope of reconciling, timing, cost or simply not being ready. Some are practical, and a lawyer or accountant can confirm how they apply to you.

• Pensions: to see a pension's value for family law purposes, ask the pension plan administrator. An Ontario pension is property counted in net family property.
• RRSPs: a tax-free direct transfer from one spouse's unmatured RRSP to the other is allowed if they are living separate and apart at the time and the transfer is made under a court order or a written separation agreement. Form T2220 is normally used, and funds paid out to you rather than transferred directly are taxable.
• Family home: married spouses share the full value of the family home, even if one owned it before the marriage or received it as a gift or inheritance.

Money and agreements while you wait

Married spouses share equally the value of property acquired during the marriage. Each works out their net family property, and the spouse with the larger figure pays half the difference as an equalization payment. Some property, such as most gifts and inheritances other than the family home, usually stays with its owner.

Staying separated without a divorce does not stop the clock on property claims. A court claim for an equalization payment must be started within six years after the day of separation, or two years after the divorce becomes final, whichever comes first. A lawyer can tell you whether anything extends this in your case.

Separation agreements are 'domestic contracts'. To have support terms enforced by the Family Responsibility Office, a domestic contract must be filed with the Ontario Court of Justice or the Superior Court of Justice and then registered with the office. A written agreement on child support, parenting arrangements or spousal support must be signed by both parents in front of a witness.

What to do next

• Write down your separation date and keep proof of it.
• List assets, debts and pensions, and ask the plan administrator about pension values.
• Decide whether you need a written separation agreement, and make sure it is signed and witnessed.
• Note the six-year property deadline and ask a lawyer whether it applies to you.
• Try negotiation or mediation where appropriate.
• Speak with a lawyer before deciding whether and when to apply for divorce.

Frequently asked questions