Separated but Not Divorced in Ontario: Do You Have to Divorce?

Separating from a spouse often raises a practical question: do you now have to divorce? Many people stay separated for months or years, whether because they are unsure, because money is tight, or because divorce simply is not a priority.

The short answer is that divorce is a choice, not a requirement. But being separated and not divorced still comes with rights, options and deadlines. This article explains what still applies, and where timing matters.

Is divorce required after separation?

No. Divorce is not required after you separate. Provincial law deals with support and parenting for married couples who separate but do not apply for a divorce, and for unmarried couples too. In Ontario, that means the Family Law Act and the Children's Law Reform Act.

So you can sort out child support, parenting arrangements and spousal support without ever filing for divorce. A divorce is one way to formally end the marriage, and it usually takes effect on the 31st day after the judgment granting it. It is not a step you must take before dealing with the practical issues.

What still applies while you are only separated

• Support and parenting questions are handled under Ontario's Family Law Act and Children's Law Reform Act.
• Married spouses can claim spousal support. So can partners who lived together as a couple for at least three years, and partners in a relationship of some permanence who had a child together.
• Married spouses share equally the value of property acquired during the marriage, through an equalization payment.
• Some property, such as most gifts and inheritances (other than the family home), usually stays with its owner and is left out of equalization.
• The full value of the family home is shared even if one spouse owned it before the marriage or received it as a gift or inheritance.
• A court can divide property unequally only in very special situations, where an equal split would be extremely unfair.
• The spouse with the larger net family property pays half the difference to the other spouse.

Spousal support is not automatic or fixed. The Spousal Support Advisory Guidelines are only guidelines, though lawyers and judges often use them. Factors include the income gap, children and childcare, age, health, each person's role in the relationship and their ability to support themselves.

Property: the clock starts at separation

This is the point most people miss. 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. Whether that deadline can be extended in your situation depends on the facts, so it is worth confirming with a lawyer. The deadline concerns starting a court claim. How this deadline applies to your situation depends on the facts, so it is worth confirming with a lawyer.

Staying separated does not pause the six years. Getting divorced can shorten your window, because the two-year period after the divorce becomes final may end sooner.

Equalization applies only to married spouses. Common-law partners have no legal duty to split property acquired while living together. Property generally belongs to the partner who bought it, though a partner who contributed to the other's property may have to go to court to recover that contribution.

Putting your arrangements in a separation agreement

A written agreement can settle support, parenting and property without a court case. An agreement on child support, parenting arrangements or spousal support must be signed by both parties in front of a witness. A lawyer or a mediator can help prepare it.

If you want the Family Responsibility Office (FRO) to enforce support terms, the domestic contract must be filed with the Ontario Court of Justice or the Superior Court of Justice and then registered with FRO. A separation agreement is one kind of domestic contract.

A written separation agreement can also support a tax-free direct transfer from one spouse's unmatured RRSP to the other. The spouses must be living separate and apart at the time of transfer, and Form T2220 is normally used. If funds are paid out to you instead of transferred directly, they are taxable.

If you decide to divorce later

The only ground for divorce is that the marriage has broken down. One way to show this is that you lived separate and apart for at least one year before the divorce is decided and were living apart when the proceeding started. You do not have to wait a year to apply, as long as you are living apart when you apply. The year must have passed before the divorce is granted.

Living together again for a short time will not necessarily restart the clock. It does not interrupt the separation if it lasted no more than 90 days in total and its main purpose was reconciliation.

Once a judgment is made, a divorce usually takes effect on the 31st day after the judgment granting it.

What to do next

• Write down your date of separation and keep records that support it.
• List your property, debts and the value of what you owned on the date of marriage.
• Note the date six years after separation and ask a lawyer how any divorce would affect it.
• Decide whether you want a separation agreement, and arrange for both signatures to be witnessed.
• Ask a lawyer or accountant before moving any RRSP funds.

Because your situation may involve pensions, a family home or children, a lawyer can confirm how these rules apply to you before any deadline gets close.

Frequently asked questions