- The only ground for divorce under the Divorce Act is breakdown of the marriage, and it can be shown by one year of separation, adultery or cruelty.
- Getting back together briefly to try to reconcile, for no more than 90 days in total, does not restart the one-year separation period.
- Whatever ground you use, the court checks for possible reconciliation, collusion and reasonable support arrangements for children before granting a divorce.
Many people start by asking whether they must wait a full year before they can divorce in Ontario, or whether something like infidelity or mistreatment lets them move faster. The answer depends on how the law defines the single reason a court can grant a divorce.
This article walks through that reason, the three ways of showing it, what "separate and apart" means in practice, and the checks a court makes before it grants a divorce. It is general information, not advice on your situation.
The one ground: breakdown of the marriage
Under the federal Divorce Act, the only ground for divorce is that the marriage has broken down. Separation does not depend on fault, but the adultery and cruelty routes turn on the conduct of the spouse the proceeding is brought against. What the law does is set out the ways you can show the breakdown has happened.
There are three ways: living separate and apart for at least one year, adultery, or physical or mental cruelty.
The three ways to show breakdown
| Way to show breakdown | What the Act requires | One-year wait? |
|---|---|---|
| Separation | Spouses 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 | Yes |
| Adultery | The spouse the proceeding is brought against has committed adultery since the marriage | No |
| Cruelty | The spouse the proceeding is brought against has treated the other spouse with physical or mental cruelty that makes continued cohabitation intolerable | No |
Separation is the only one of the three that does not turn on one spouse's conduct. If you rely on adultery or cruelty, the court has an additional check to make, covered below. This article does not go into what evidence is needed for those two grounds, which is a question to raise with a lawyer.
What "separate and apart" means
Spouses are treated as having lived separate and apart for any period during which they lived apart and either spouse intended to live separately. So the intention of just one spouse can be enough to start the clock.
Some couples separate but keep living in the same house. Justice Canada guidance notes this happens and that a lawyer can explain what courts may consider when deciding whether spouses are separated. There is no fixed test, and it is decided case by case, so the details of your household matter.
If you try to reconcile, 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. Going beyond that can raise a question about whether the clock restarted, so it is worth getting advice before you move back in together.
What the court checks before granting a divorce
Even when the ground is clear, a judge must complete some checks. Before considering the evidence, the court must satisfy itself that there is no possibility of the spouses reconciling, unless it would clearly be inappropriate to do so. The court must also be satisfied that 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, the court must also be satisfied that the spouse bringing the proceeding has not condoned or connived at it. Condonation means, in plain terms, forgiving the conduct. Living together again for 90 days or less, mainly to reconcile, is not condonation.
- Possible reconciliation: checked first
- No collusion: checked in every case
- Reasonable child support arrangements: checked where there are children of the marriage
- No condonation or connivance: checked only for adultery or cruelty
Why your separation date matters beyond divorce
Whichever ground you use, the date you separated can matter for property. The valuation date used to calculate net family property is the earliest of several dates, and one of them is the date the spouses separate with no reasonable prospect of resuming cohabitation. That is why the separation date affects equalization, not only the divorce itself.
What to do next
- Write down the date you and your spouse began living apart, and who intended to separate
- Note any periods you lived together again and why, including how many days in total
- Keep records that show the separation, such as a change of address or lease
- Gather information about your children's support arrangements
- Speak with a family lawyer if you are separated under the same roof, are thinking of relying on adultery or cruelty, or have tried to reconcile
Frequently asked questions
Do I have to wait a year to divorce in Ontario?
Not always. Living separate and apart for at least one year is one way to show the marriage has broken down, but adultery or cruelty that makes continued cohabitation intolerable can also show it without the one-year wait. Those grounds come with an extra check by the court.
Does getting back together for a while restart the one-year clock?
Not if you resumed living together for periods totalling no more than 90 days, mainly to try to reconcile. Longer periods can raise questions, so it is worth confirming with a lawyer.
Can we be separated while living in the same house?
It can be possible, but how it applies depends on your situation. Justice Canada guidance says some couples separate but stay in the same house, and that a lawyer can explain what courts may consider when deciding whether spouses are separated. The law looks at whether you lived apart and whether either spouse intended to live separately.
What does the court check before granting a divorce?
It must be satisfied there is no possibility of reconciliation unless that would clearly be inappropriate, that there was no collusion, and that reasonable support arrangements are in place for any children. For adultery or cruelty it also checks there was no condonation or connivance.
Sources
- Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 8 — Justice Laws (federal)
- Department of Justice Canada – How to Apply for a Divorce — justice.gc.ca
- Divorce Act, s. 10(1) — Justice Laws (federal)
- Family Law Act, s. 4(1) 'valuation date' — Ontario e-Laws
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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