How to Start a Divorce in Ontario: The First Steps

Deciding to divorce is a big step, and the practical side can feel unclear. Before any court form is filled in, there are a few things worth settling: whether you are eligible, what date you separated, and how you want to move forward.

This article walks through that early sequence in order. It explains how things generally work in Ontario. Every family's facts differ, so a lawyer can confirm how the rules apply to you.

Step 1: Confirm you can divorce in Ontario

A divorce is a court order that officially ends a valid marriage, and only legally married couples can divorce. Common-law partners do not divorce, although other family law rules may still apply to them.

An Ontario court can hear your divorce if either spouse has been habitually resident in Ontario for at least one year immediately before the case starts. Only one of you needs to meet this.

If you married in another country, the marriage can be ended by divorce in Canada if Canada recognizes it and the residence requirement is met. There is also a narrow exception for couples married in Canada where neither spouse lives here, and it has strict conditions.

Step 2: Understand the ground and the separation year

The only ground for divorce under the federal Divorce Act is breakdown of the marriage. The usual way to show it is that you have lived separate and apart for at least one year before the divorce is decided, and were living apart when the case started.

There is an exception. Breakdown is also shown, without the one-year wait, if the other spouse has committed adultery or treated you with physical or mental cruelty that makes living together intolerable. In those cases the court must also be satisfied that the spouse bringing the case has not condoned or connived at it, and living together again for 90 days or less, mainly to reconcile, is not condonation.

• Spouses are treated as separate and apart for any period when they lived apart and either one intended to live separately.
• If you try to reconcile, the one-year period is not treated as interrupted when you live together again for periods totalling no more than 90 days, mainly to reconcile.
• Some couples separate but stay in the same house. Courts look at the facts of each case, so a lawyer can explain how that may apply to you.

Step 3: Note the dates and money issues that matter early

Your date of separation is more than a detail. For property, 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 half the difference between the two.

• RRSPs and pensions count as property in that calculation.
• Gifts and inheritances from a third party received after the marriage may be excluded, other than a matrimonial home, but you must prove an exclusion.
• An equalization claim must be brought by the earliest of three dates: two years after a divorce or nullity judgment, six years after separation with no reasonable prospect of resuming cohabitation, or six months after the first spouse's death. The court may extend the time if there are apparent grounds for relief, the delay was in good faith, and no one will suffer substantial prejudice.
• If a divorce is made after a will is signed, gifts to the former spouse in that will are generally revoked and the former spouse is treated as having died first, unless the will shows a contrary intention. The same can apply if the spouses were separated when the person died, under conditions set out in the law.

Because deadlines can run before you file, it is sensible to get advice on property early rather than after the divorce.

Step 4: Choose how you want to proceed

Parties in a Divorce Act case must try to resolve matters through a family dispute resolution process where appropriate. That means a process outside court, such as negotiation, mediation or collaborative law. A lawyer acting for you must also discuss reconciliation and encourage you to try such a process unless it is clearly inappropriate.

In collaborative law, the lawyers' retainer includes an agreement that both lawyers withdraw if the matter goes to court, and the parties commit to full, voluntary disclosure.

Either spouse may start the case, or the two of you can file a joint application. A joint application only works if you agree, because any order can be made only with both spouses' consent.

What to do next

• Write down the date you separated and whether either of you intended to live apart.
• Locate your marriage certificate or registration certificate.
• List your property, debts, pensions and RRSPs, with values near the separation date.
• Decide whether you want to try mediation or negotiation first.
• Speak with a lawyer about support, parenting and property before signing anything.

Frequently asked questions