Trial Separation in Ontario: Does It Change Your Rights?

Many couples take a break before deciding whether the relationship is over. You might be living in different places, or under one roof in separate rooms, and you may both hope things improve. It is natural to wonder whether this break already has legal effects.

This page explains how Ontario and federal law treat separation, reconciliation attempts, divorce timing and property. It is general information, and a lawyer can apply it to your situation before you rely on any date.

Is a trial separation a legal separation?

There is no formal step or registration that makes a separation official. For divorce, spouses are treated as having lived separate and apart for any period during which they lived apart and either of them intended to live separate and apart. Only one spouse needs that intention.

For dividing property, the valuation date is the earliest of several dates. The first of those is the date the spouses separate and there is no reasonable prospect that they will live together again. That wording means the realistic chance of getting back together can matter, so a break that both of you genuinely expect to end soon may be viewed differently from a final split.

Some couples separate but keep living in the same house. Justice Canada notes that a lawyer can explain the factors courts consider when deciding whether spouses are separated. How a court would see your arrangement depends on the facts.

The 90-day reconciliation rule

If you try to reconcile, the Divorce Act protects the separation period up to a point. The one-year separation period is not interrupted if the spouses resume cohabitation for one period, or several periods totalling, not more than 90 days with reconciliation as the primary purpose.

Justice Canada describes the same idea in practical terms: spouses can live together for up to 90 days, either before or after filing the divorce application, to try to reconcile. If it does not work out, the divorce can continue as if they had not spent the time together.

• The rule is about trying to reconcile, so the purpose of living together again matters.
• The limit is 90 days in total, whether it is one stretch or several shorter ones.
• If you live together for longer, whether the separation clock restarts depends on the facts, and a lawyer can confirm.

How a trial separation affects divorce

Marriage breakdown for a divorce is established 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 proceeding started. A trial separation that turns permanent can therefore become the start of that year.

There are other routes. Breakdown can also be established without the one-year period if the other spouse committed adultery, or treated you with physical or mental cruelty that makes continued cohabitation intolerable.

If one spouse becomes unable to form an intention to continue living separate and apart, the separation period is not interrupted only for that reason, if the court finds the separation would probably have continued.

Effects on property, the home and benefits

For tax benefits, the CRA says to report a separation only after you have been separated for more than 90 days because of a breakdown in the relationship. The effective date is the day you started living apart. For common-law status, the 12 continuous months of living together includes any period you were separated for less than 90 days.

What to do next

• Write down the date you stopped living as a couple and what each of you intended at that time.
• Keep a simple record of any time you spent living together again, and why.
• Avoid major financial moves, such as large transfers or new debts, until you understand the property rules.
• If you reach an arrangement, put it in a separation agreement. It is unenforceable unless it is in writing, signed by the parties and witnessed.
• Use a Family Law Information Centre for free general information about separation and divorce.
• Talk to a lawyer before relying on any separation date, especially if you lived together again for more than a few weeks.

Frequently asked questions