Legal Separation in Ontario: What It Means and What It Doesn't

Many people search for "legal separation" expecting a form to file or a court status to apply for. In Ontario, it doesn't really work that way, and that surprises a lot of couples.

This article explains what separation means in practice, how it differs from divorce, and which legal questions it can set in motion. It is general information, not advice for your situation.

Separation is a fact, not a court order

Separating generally means that you and your spouse or partner have ended your relationship and are living apart, or living separate lives. It is something that happens in real life. You do not need a judge to approve it.

A divorce is not required after you separate. Provincial law, in Ontario the Family Law Act and the Children's Law Reform Act, deals with support and parenting for married couples who separate but do not apply for a divorce, and for unmarried couples.

How separation differs from divorce

Under the Divorce Act, the only ground for divorce is breakdown of the marriage. One way to show breakdown is that the spouses lived separate and apart for at least one year before the divorce is decided and were living apart when the proceeding started.

The one-year rule and its exceptions

You do not have to wait a year before applying, as long as you are living apart when you apply. The year must have passed before the divorce is granted.

• Reconciliation attempts: living together again does not interrupt the one-year separation if it lasted no more than 90 days in total and its main purpose was reconciliation.
• Adultery or cruelty: a divorce based on adultery or cruelty can be applied for at any time, and the one-year wait does not apply.

What separation can affect

• Property for married spouses: each spouse works out their net family property using the value of what they own on the separation date, and the spouse with the larger figure pays half the difference as an equalization payment.
• Property deadline: 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.
• Property for common-law partners: there is no legal duty to split property acquired while living together, and property generally belongs to the partner who bought it.
• Spousal support: married spouses can claim it, as 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.
• Children: parenting and support questions are dealt with under provincial law if you do not divorce.

Because the date you separated matters for property and for deadlines, it is worth noting it down and confirming it with a lawyer if you and your former partner see it differently.

What to do next

• Write down the date you believe you separated and any times you lived together again afterward.
• Gather records of income, debts, savings, pensions and property.
• Decide whether you want a divorce now, later or not at all.
• If you reach agreements, put them in writing. A written agreement on child support, parenting or spousal support must be signed by both parties in front of a witness.
• Speak with a family lawyer about deadlines and your options.

Frequently asked questions