Gray Divorce in Ontario: Divorcing Later in Life

Divorce later in life often looks different from divorce earlier in adult life. The children may be grown, retirement is closer, and most of what you own may be tied up in a home, pensions and registered savings. The decisions you make now have to carry you through the years when you earn less or stop working.

This article explains the main legal rules that tend to matter for older couples in Ontario: who can apply, how property and pensions are divided, how support is considered, and what the court process looks like. It is general information, not advice on your situation.

Who can apply and when

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 the breakdown of the marriage, which is usually shown by living separate and apart for at least one year.

Spouses are treated as living separate and apart for any period when they lived apart and either of them intended to live separate and apart from the other. Many older couples cannot afford two homes right away. Whether spouses who still share a house can count as separated is a question about the facts and the case law, so get legal advice before relying on it.

If you try to reconcile, the one-year period is not interrupted so long as you resume living together for no more than 90 days in total and reconciliation was the main purpose. Longer periods of living together can change the picture, so keep track of dates.

Pensions, RRSPs and the family home

Property is divided through equalization. Each spouse works out the value of what they own on the separation date, subtracts debts and excluded property, and then subtracts the same net value at the date of marriage. A negative result counts as zero, and the spouse with the larger amount pays half the difference to the other.

An Ontario pension counts as property in this division. To find its value, you ask the pension administrator for information about what it is worth. A pension can be a large part of what you own, so it is worth getting that information early.

If registered savings are moved between spouses to settle property rights, the Income Tax Act allows an RRSP transfer to a spouse's or former spouse's RRSP or RRIF on marriage breakdown when you are living separate and apart and the transfer is made under a court order or written separation agreement. The transfer is not included in income just because of the transfer. Ask an accountant how it applies to your numbers.

The full value of the family home is shared even if one spouse owned it before the marriage or received it as a gift or inheritance, unless the spouses agree otherwise. The mortgage is deducted at separation but not in the marriage-date calculation. A married person can also ask the court to let them stay in the home and require the other spouse to leave, even if that spouse owns it. The judge looks at past violence, whether there is another suitable place to live, the children's interests and both parties' finances.

Inheritances and other excluded property

Some property is left out of the calculation. This includes property, other than the family home, that was inherited or gifted by someone other than your spouse during the marriage, as well as insurance money from a death, personal injury money, and property the spouses agree to exclude.

Older spouses often receive an inheritance from a parent. Whether it stays excluded can depend on how it was kept or used, especially if it was mixed with other money or put into the home. That is a point to review with a lawyer.

• Inheritance or gift received during the marriage from someone other than your spouse: generally excluded, other than the family home.
• Inheritance money put into the family home: how this is treated depends on the facts, so it is worth confirming with a lawyer.
• Property you both agree to exclude: excluded.

Spousal support later in life

When the court decides on spousal support, it considers the condition, means, needs and other circumstances of each spouse. That includes how long you lived together, the roles each of you played during the relationship, and any order, agreement or arrangement about support.

For couples near retirement, the practical questions are usually whether one spouse stepped back from paid work, how each person's income will change on retirement, and how pension income will be split. How long support lasts depends on the facts, and a lawyer can explain what is realistic in your case.

Time limits and the court process

An application for an equalization payment must be made within six years of separation or two years after the divorce is final, whichever comes first. Unequal division is allowed only in very special situations where equal division would be extremely unfair.

A divorce-only case uses Form 8A, a joint application can be filed if you agree, and a general Form 8 is used when you also claim support, parenting or property. A respondent served in Canada or the United States has 30 days to serve and file an Answer on Form 10. If support or property is in issue, you will also complete a financial statement: Form 13 for support only, or Form 13.1 where property or debt is claimed. These must be sworn or affirmed before a lawyer or commissioner of oaths, and a courthouse clerk can do this for people without a lawyer.

A divorce order takes effect 31 days after it is made. The court will not grant a divorce without the original marriage certificate, though Form 36 can explain why you cannot provide it, and it needs the Central Registry of Divorce Proceedings clearance certificate first.

What to do next

• Write down your date of marriage and your date of separation.
• Gather statements for pensions, RRSPs, bank and investment accounts, and debts as of both dates.
• Ask each pension administrator for information about the pension's value.
• Find your original marriage certificate.
• Collect records of any inheritances or gifts and where the money went.
• Speak with a family lawyer, and an accountant about RRSP transfers, before signing any agreement.

Frequently asked questions