Does Trying to Reconcile Restart the One-Year Divorce Clock in Ontario?

You separated, and then one of you moved back in, or you are thinking about it. Now you are worried that giving the relationship another chance will wipe out the time you have already spent apart and force you to start the one-year wait for a divorce all over again.

The answer depends on how long you lived together again and why. Ontario divorces are decided under the federal Divorce Act, and it deals with reconciliation attempts directly. This article walks through the rule, some worked examples, the exceptions, and how a reconciliation attempt can matter in other areas.

This is general information, not advice on your situation. Because the outcome turns on dates and facts, it is worth confirming your own timeline with a lawyer.

The basic rule: one year apart

For most divorces, the court treats the marriage as broken down if the spouses have lived separate and apart for at least one year immediately before the court decides the divorce, and were living separate and apart when the divorce proceeding started.

Only one spouse needs to intend to live separate and apart. Spouses are treated as having lived separate and apart for any period when they lived apart and either of them intended to do so. So you do not need your spouse to agree that the relationship is over for the clock to run.

The 90-day reconciliation rule

Many people try again before they give up. The Divorce Act allows for this. The one-year separation period is not interrupted if the spouses resume living together for one period, or several periods totalling not more than 90 days, with reconciliation as the primary purpose.

Justice Canada explains that spouses can live together for up to 90 days, either before or after the divorce application is filed, to try to reconcile. If it does not work out, the divorce can continue as if they had not spent that time together.

Here is how that can play out in practice. These are simplified illustrations, not predictions.

• One 60-day attempt: you move back in for 60 days hoping to repair things, then separate again. This is one period under the 90-day limit with reconciliation as the main purpose, so the year is not interrupted.
• Several shorter attempts: the rule covers several periods only if they total not more than 90 days. If your periods add up to more than that, the protection may not cover them, so how the year is counted would need to be reviewed with a lawyer.
• Moving back in for another reason: for example, you return because of money, housing or a family emergency, not to reconcile. The rule asks whether reconciliation was the primary purpose, so a stay for other reasons may not be protected. This depends on the facts.

Keep a simple record of when you moved back in, when you moved out again, and why. Dates matter.

Other exceptions and special situations

• Incapacity: a separation period is not interrupted only because a spouse becomes incapable of forming an intention to continue living separate and apart, if it appears to the court that the separation would probably have continued.
• Adultery or cruelty: breakdown of the marriage can also be established without waiting a year if the other spouse committed adultery, or treated you with physical or mental cruelty that makes continued cohabitation intolerable.
• Separation under one roof: some couples separate but still live in the same house, and Justice Canada says a lawyer can explain the factors courts consider when deciding whether spouses are separated. Courts decide this on the facts of each case.

Even when one of these routes is open, you still need to prove the facts, so it helps to speak with a lawyer before relying on them.

Reconciliation attempts can matter elsewhere

The 90-day rule is part of the Divorce Act. Other laws and agencies use their own tests, so a reconciliation attempt can have different effects depending on the setting.

Because these tests are different, do not assume that a date that works for your divorce also works for your property or tax position. A lawyer or accountant can confirm each one.

What to do next

• Write down the date you first lived apart and who intended the separation.
• List every period you lived together again, with start and end dates and the reason for each.
• Add up the days of any reconciliation periods and compare them with the 90-day limit.
• Gather documents that show your living arrangements, such as leases, bills and correspondence.
• Speak with a lawyer before filing if your dates are close to the limits or you lived under one roof.

Ontario's Family Law Information Centres are free services across Ontario that give information about separation, divorce and related family law issues. They have information and referral coordinators and duty counsel provided by Legal Aid Ontario. They are a sensible first stop if you are unsure where to begin.

Frequently asked questions