Are you preparing for a divorce in Ontario? You may have heard that the process has a waiting period for ending a marriage. For no-fault divorces, married couples must live separately (although they may still together in the same home, but separate and apart) for at least one year before they can file for divorce. The one year separation requirement does not apply to fault-based divorces. Here, our Ottawa divorce lawyer provides an overview of the most important things to know about the one year separation requirement to get a divorce in Ontario.
Ontario has No-Fault Divorce (But One Year Separation is Required)
Ontario follows a no-fault divorce system. Neither you nor your spouse needs to prove wrongdoing by the other in order to file for divorce. You can get divorce solely based on the fact that your marriage has broken down. With that being said, you cannot get an immediate no-fault divorce in Ontario. To finalize the divorce, Ontario law requires that spouses live separately for at least one year before the divorce can be granted.
What Does Separation Mean in Ontario?
In Ontario, the law requires divorcing couples to live “separate and apart” for a period of at least one year before they become eligible to file for a no-fault divorce. What does it mean to live separately under the law? To be considered “separate and apart,” the couple must demonstrate that they no longer act as a couple in essential aspects of their relationship. However, it does not mean that the couple must live in different homes. They can still meet the separation requirement while residing under the same roof.
One spouse moving out is generally clear evidence of living separate and apart, however other evidence to prove separate and apart is sufficient as well. For example, spouses that move into separate rooms, stop sharing meals, and start to separate their finances can all meet the separate and apart requirement. Indeed, the couple agreeing that it is time for a divorce and one spouse starting to sleep in a different room instead of in the marital bed is evidence that they are now living “separate and apart” under Ontario law.
Divorce Tip: Make sure that you document the date of separation between you and your spouse. Doing so can help to make the divorce process easier—especially if you continue to live in the same house during the separation period.
If We Try to Reconcile, Does the One Year Separation Process Start Over?
Getting a divorce is certainly not always a smooth process. It is not uncommon for married couples to be unsure as to whether or not a divorce is the right option for their situation. What happens if you start the separation process but then try to reconcile your marriage? As explained by the Government of Canada, “if you have applied for a divorce based on a one-year separation, you can live together again for up to 90 days in an effort to reconcile.”
In other words, any 90 day reconciliation attempt during your one-year separation will not “reset” the clock. Imagine that your spouse moves out from your home in Ottawa in January because you agree that it is time for a divorce. In April, your spouse moves back in and you both decide to give the marriage another shot. Unfortunately, it does not work. In June, your spouse moves out and you separate again. As that reconciliation effort was less than 90 days, it does not reset the clock.
The One-Year Separation Period Can Be Waived If there are Fault-Based Grounds
The one-year separation requirement is mandatory for a divorce in Ontario—unless fault-based grounds apply and the divorce is being finalized with consideration to those fault-based grounds. Specifically, a divorce may be granted without any separation period for the following reasons:
- Adultery: If one spouse has engaged in a relationship outside the marriage, the other spouse can file for divorce based on adultery without the need to separate first. Evidence must be provided. The court requires proof of the affair.
- Physical or Mental Cruelty: Instances of physical, emotional, and/or psychological harm that make living together unbearable can qualify as cruelty. Cruelty within a marriage may include conduct that is consistently demeaning, manipulative, or damaging to a person’s mental health. It can waive separation.
Our Firm Handles the Full Range of Divorce Issues
The one-year separation requirement for divorces in Ontario is a technical issue. Divorce is a complex, technical process. A lawyer can help you navigate all of these matters, including handling the divorce paperwork. Beyond that, the team at RPB Family Law is focused on all of the practical family law issues that will impact your life now and in the future. We have experience with:
- Property Division: In Ontario, the value of marital property is generally split 50/50 by the spouses, subject to exclusions, deductions, and other legal claims. This process is called the equalization of net family property (NFP) is used to divide it.
- Spousal Support: If one spouse has better financial prospects, ongoing spousal support (alimony) may be paid to the other spouse following separation.
- Child Custody: For parents of young kids, divorce can be particularly stressful. Our firm has extensive experience handling child custody cases, now referred to in the law as parenting time and decision-making authority.
- Child Support: Divorced or separated parents have a duty to provide proper financial support to their children. We handle child support cases in Ontario.
Contact Our Ottawa Divorce Lawyer Today for a Confidential Consultation
At RPB Family Law, our Ottawa divorce lawyers help people navigate challenging times. Do you have any specific questions or concerns about the divorce process? We are here to help. Contact us today for a completely confidential, no obligation initial consultation. With an office in Ottawa, we provide family and divorce representation throughout Ontario.
