Trial Separation in Ontario: Legal Effects and Risks

A trial separation is a break. You may want space to think, to see whether the relationship can be repaired, or to avoid making a final decision about divorce. Many couples describe it as being on pause, but the law looks at whether you lived apart and whether one of you intended to live apart.

That matters, because dates, support and property can all be affected by what you do during the break. This article explains how the rules generally work in Ontario so you can make choices with your eyes open. Your own situation may differ, so a lawyer can confirm how the rules apply to you.

How the law looks at a trial separation

Under the Divorce Act, spouses are treated as separated for any period they lived apart and one of them intended to live apart. How this applies to your own break depends on the facts, so it is worth confirming with a lawyer.

If you are married and later seek a divorce based on separation, you must have lived separate and apart for at least one year immediately before the divorce is determined, and you must have been separated when the proceeding began. Justice Canada notes that you can apply while still living apart, but the one-year period must be complete before the divorce is granted.

What happens to the one-year clock if you reconcile

The Divorce Act allows for attempts to get back together. If spouses resume living together for periods totalling no more than 90 days, and reconciliation is the primary purpose, the separation is not interrupted.

Beyond that limit, or where the purpose is not mainly reconciliation, the answer depends on the facts. Keep a simple record of dates when one of you moved out, when you stayed together and why. If you are unsure whether the clock has restarted, ask a lawyer before relying on a date.

Support and property during a break

Spousal support is not automatic on separation or divorce, so it must be raised. You may be entitled if you were married, lived together as a couple for at least three years, or had a relationship of some permanence and a child together. In a divorce case under the Divorce Act, a court deciding spousal support considers factors including the length of cohabitation, each spouse's functions during cohabitation and any existing support arrangements.

Child support depends on the number of children, the province where the payor lives and the payor's annual income. If you are discussing a break, talk about who will pay what, even informally. A court looking at retroactive child support generally starts from the date the issue was effectively raised, and raising it need not involve legal action.

For property, the rules for married and common-law couples differ. In Ontario, property acquired during a marriage must be split equally when the marriage ends for any reason. Common-law couples are not legally required to split property acquired while they lived together, though they may set property rights in a cohabitation agreement. The time limit to go to court over equalization is six years from the day of separation, or two years from the day the divorce is final, whichever comes first. Whether a trial separation counts as the day of separation for that time limit depends on your situation, so it is worth noting your dates and confirming with a lawyer.

The home and the children during a trial separation

Both spouses have an equal right to possession of a matrimonial home regardless of who owns it. For married spouses, the home's full value is shared even if one spouse owned it before the marriage or received it as a gift or inheritance. Whether moving out changes your position depends on the facts, so get advice before you leave.

For children, parenting arrangements cover where children live, time with each parent and who makes major decisions. An informal plan can be hard to enforce. If you and your spouse agree on a schedule during the break, writing it down is sensible. Children's schedules set during a trial period can also shape what later seems normal, so think about what you could live with long term.

What to do next

• Write down the date you began living apart and who intended the separation.
• Keep a log of any periods you spend living together again, with dates and the reason.
• Agree, in writing, on money, bills and the children's schedule while you are apart.
• Gather financial records such as tax returns and bank statements.
• If you sign an agreement, make sure it is in writing, signed and witnessed, and that each of you has your own lawyer review it.
• Use free information services if you want general guidance on separation and ways to resolve issues without court.

An agreement made now is hard to change later, since Ontario notes that you cannot easily change a separation agreement. If you are unsure, mediation is voluntary and confidential unless both parties agree otherwise, though a mediator does not replace a lawyer.

Frequently asked questions