Trying to Reconcile While Separated: Does the Ontario Divorce Clock Restart?

You and your spouse have separated, and some of the one-year wait for divorce has already passed. Then one of you suggests trying again, perhaps by moving back in together. It is natural to worry that a failed attempt will wipe out the time you have already counted.

The Divorce Act speaks to this worry directly. This article explains how the one-year rule works, what the 90-day reconciliation exception allows, and why your separation date still matters for other issues such as property.

What you need to show for a divorce

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

There are other ways to show breakdown that do not require waiting a year. These are adultery or physical or mental cruelty by the spouse the proceeding is brought against, where the cruelty makes continued living together intolerable. Most people rely on the one-year route, which is the focus here.

What counts as living separate and apart

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 intention matters, and it only takes one of you to hold it.

Some couples separate but keep living in the same house. Whether spouses in that situation are separated depends on the facts, and a lawyer can explain what courts may consider on your facts. Because of this, it is wise not to assume your own situation will be treated a certain way.

The 90-day reconciliation exception

The law recognizes that people sometimes try again. The one-year separation 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.

• The periods together add up to no more than 90 days, so several shorter stays can count toward the total.
• The purpose must mainly be to try to reconcile.
• If the attempt works out and you stay together beyond that limit, the exception no longer protects the earlier time. Whether the clock restarts then depends on the facts, so it is worth getting advice.

If your time back together totals no more than 90 days across one or more periods and was mainly to try to reconcile, the separation time you had built up is not treated as interrupted. Keep track of the dates you moved back in and out.

Reconciliation and adultery or cruelty cases

A parallel rule applies if a divorce is based on adultery or cruelty. The court must be satisfied that the spouse bringing the proceeding has not condoned (forgiven) or connived at it. Living together again for 90 days or less, mainly to reconcile, is not condonation.

The court also has its own duty. Before considering the evidence, it must satisfy itself that there is no possibility of the spouses reconciling, unless doing so would clearly be inappropriate.

Why your separation date still matters, and what to do next

Even if the divorce clock is protected, the date you separated has other uses. For property, the valuation date is the earliest of several dates, and one of them is the date the spouses separate with no reasonable prospect of resuming cohabitation. The time limit to claim equalization is the earliest of 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 that time if there are apparent grounds for relief, the delay was in good faith, and no one will suffer substantial prejudice. A reconciliation attempt can raise questions about which date applies, so this is worth discussing with a lawyer.

If you hire a lawyer for a divorce, they must discuss the possibility of reconciliation with you and encourage you to try a family dispute resolution process, unless the circumstances clearly make that inappropriate. That kind of process happens outside court and includes negotiation, mediation and collaborative law.

• Write down the date you separated and who intended to separate.
• Record the dates of any move back in together and why you did it.
• Keep any messages or documents that show your intentions.
• Note the total number of days you lived together again.
• Speak with a lawyer before you file if your dates are unclear or you lived together for longer than 90 days.

Frequently asked questions