Residency Requirement for Divorce in Ontario: One-Year Rule

If you have recently moved to Ontario, or moved within Canada, you may be wondering whether you can start a divorce here yet. The rule people usually mean is the one-year residency requirement, and it is easy to confuse with the one-year separation rule.

This article explains the residency test in plain language, who has to meet it, how it fits with the separation rule, and what to gather before you speak with a lawyer. Your own dates and living arrangements decide the answer, so treat this as a guide to the questions, not a ruling.

What the one-year residency rule says

Under the federal Divorce Act, an Ontario court can hear a divorce proceeding if either spouse has been habitually resident in Ontario for at least one year immediately before the proceeding starts. The word "immediately" matters. The year is counted back from the day the case begins, not from any earlier point in your life.

The test looks at one year of residence in Ontario just before the case starts, and only one spouse has to meet it. How a court applies the idea of habitual residence to your situation depends on the facts, so it is worth confirming with a lawyer. Whether you meet it can depend on the facts, so keep records that show when you settled here.

Only one spouse has to qualify

You do not both need to have lived in Ontario for a year. Only one spouse needs to meet the requirement. If your spouse has lived in Ontario for more than a year and you arrived last month, the court may still be able to hear the case.

Residency is not the same as separation

The residency rule decides whether an Ontario court can hear the case. A separate rule decides whether there is a ground for divorce. The only ground is breakdown of the marriage. One way to show it is that the 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.

There are other ways to show breakdown. It can also be shown if the spouse the case is against has committed adultery since the marriage, or has treated the other spouse with physical or mental cruelty that makes continued cohabitation intolerable. In those cases there is no one-year wait for separation.

• Spouses are treated as living separate and apart for any period when they lived apart and either spouse intended to live separately.
• The separation period is not treated as interrupted if the spouses resumed living together for periods totalling no more than 90 days, mainly to try to reconcile.
• Some couples separate but still live in the same house. Courts look at the facts, so a lawyer can explain what may be considered.

Newcomers, movers and marriages abroad

If you came to Canada recently, the key question is whether you have been habitually resident in Ontario for at least one year immediately before the case starts. If you moved here from another province, the year is about Ontario residence, so time spent elsewhere in Canada may not count toward the Ontario test.

A marriage performed under the laws of another country can be ended by divorce in Canada if Canada recognizes that marriage and the residence requirement is met. There is also a narrow exception for people who married in Canada but no longer live here. A court in the province where the marriage was performed may grant a divorce when neither spouse lives in Canada, they have lived separate and apart for at least one year, and each spouse lives, and has for at least one year, in a state that will not grant the divorce because it does not recognize the marriage as valid.

Where you file inside Ontario is a different question. A family case starts in the municipality where a party lives, subject to the Courts of Justice Act.

What to do next

Before booking a lawyer or filing anything, pull together the documents that show your dates and your living situation. Either spouse may start a divorce case, either by filing an application naming the other spouse as respondent or by both spouses filing a joint application.

• The date you or your spouse became settled in Ontario, with proof such as a lease, utility bills, health card or employment records.
• The date you separated and whether either of you intended to live apart from that date.
• Any periods you lived together again after separating, and why.
• Your marriage certificate or marriage registration, and details of where the marriage took place.
• A note of any earlier divorce proceedings either of you started.
• Your current address and your spouse's, if known.

If the dates are close, or if you or your spouse have lived in more than one country, ask a lawyer to confirm which date starts the clock before you file.

Frequently asked questions