Do You Have to Be Separated a Year Before Divorce in Ontario?

You have separated and want to know how long you must wait before you can end the marriage. The answer is often shorter than people expect, because the waiting period and the application process can overlap.

This article explains how the one-year rule works in Ontario, what happens if you try to reconcile, when no waiting period applies, and why your separation date matters even if you never divorce. It is general information, and your own facts can change the answer.

What the one-year rule says

Under the federal Divorce Act, the only ground for divorce is that the marriage has broken down. One way to show that is that you and your spouse lived separate and apart for at least one year before the divorce is decided, and were living apart when the proceeding started.

In plain words, the year is a measure of breakdown. It is not a waiting room that stops you from starting the paperwork. Many people are surprised to learn that the clock and the court process can run side by side.

You can apply before the year is up

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

Even after the judgment, the divorce does not usually take effect right away. It usually takes effect on the 31st day after the judgment granting it. If you are planning around a remarriage, a pension, or an insurance change, keep that gap in mind.

Reconciliation attempts and the exceptions

Many couples try to work things out before ending a marriage. Living together again does not interrupt the one-year separation if it lasted no more than 90 days in total and its main purpose was reconciliation.

There is also an exception to the waiting period itself. A divorce based on adultery or cruelty can be applied for at any time, and the one-year wait does not apply.

Why your separation date still matters

Separating does not oblige you to divorce. Support and parenting for married couples who separate without divorcing, and for unmarried couples, are dealt with under Ontario law, including the Family Law Act and the Children's Law Reform Act.

The date you separated also starts a clock for property. 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. There may be limited situations where that time can be extended, but they depend on the facts, so do not count on one. Because of that, a divorce can shorten your time to bring a property claim. How these deadlines apply to your situation depends on your facts, so it is worth confirming your dates with a lawyer before you rely on them.

• Write down the date you believe you separated and why.
• Keep records, such as messages, lease changes or address changes, that show when you began living apart.
• Note any periods you lived together again, and how long they lasted.

Trying to resolve issues without a fight

Divorce Act parties must try to resolve their issues through a family dispute resolution process, such as negotiation or mediation, where appropriate. Reaching agreement is not required before going to court.

Free family mediation services are available in all Ontario family courts. Free mediation is available at the courthouse on the day of a scheduled court appearance, while off-site family mediation is charged on a sliding scale based on income and number of dependants. Services and locations vary by municipality, so check what your local courthouse offers.

What to do next

• Confirm the date you and your spouse began living apart.
• List any attempts to reconcile and add up the total days you lived together again.
• Think about whether a ground other than one year of separation might apply to you.
• Put the six-year and two-year property deadlines in your calendar.
• Consider mediation for issues like parenting, support and property.
• Speak with a lawyer about timing before you file.

Frequently asked questions