Separation and Divorce

Separation and divorce are two different things in Ontario. You are separated when you and your partner live separate and apart and at least one of you intends the relationship to be over; no court filing is needed. A divorce is a court order that ends a marriage, and the usual ground is that the spouses have lived separate and apart for at least one year by the time the court decides (Divorce Act, s. 8(2)(a)).

This page explains how separation and divorce work, what has to be settled along the way, and which questions belong on other pages. Property, support and parenting are usually the bigger issues, and each has its own page. Start with property division if you own a home or savings together. Our page on child and spousal support explains the money that flows after separation. If you have children, read about parenting time and decision-making. Our practice areas page shows how they fit together.

There is no "legal separation" document in Ontario. Separation is based on intent and on how you live, not on paperwork. For the Divorce Act, spouses are treated as living separate and apart for any period during which they lived apart and either of them intended to live separate and apart from the other (s. 8(3)(a)). One spouse's intention is enough; the other does not have to agree.

The date you separate matters well beyond the divorce. For married spouses it is usually the valuation date for property division (Family Law Act, s. 4(1)), and it starts the six-year limit for an equalization claim (s. 7(3)(b)). Our guide to the valuation date explains how the date is fixed when spouses disagree.

After separating, most couples sign a separation agreement. The Family Law Act lets two people who lived together and are now living separate and apart agree on property, support, decision-making responsibility, parenting time and any other matter in settling their affairs (s. 54). To be enforceable, it must be in writing, signed by both and witnessed (s. 55(1)). Our article on separation vs. divorce in Ontario covers the everyday side of this.

Common-law couples separate in the same way, but they never need a divorce. Their rights differ in important ways: they can claim spousal support after three years together or a relationship of some permanence with a child (s. 29), but they have no equalization claim under the property rules, which apply only to married spouses.

1. Check that Ontario can hear it. A court in a province can hear a divorce if either spouse has been habitually resident there for at least one year immediately before the case starts (Divorce Act, s. 3(1)). In Ontario, divorces are heard by the Superior Court of Justice.
2. Decide between a joint and a sole application. Either spouse can start the case by filing an application naming the other as respondent, or both can file a joint application with no respondent (Family Law Rules, r. 36(1)). In a joint application, the divorce and any other order are made only with both spouses' consent (r. 36(2)).
3. File and serve. The court fee to file an application is $214 (O. Reg. 293/92, s. 1.2). A sole application is served on the other spouse, who can file an answer.
4. Attend the information program if required. Each party attends the mandatory information program within 45 days after the case starts (r. 8.1(4)). Cases proceeding on consent, and cases where the only claims are for a divorce, costs or including the terms of an existing agreement, are exempt (r. 8.1(2)).
5. File the supporting papers. The court will not grant a divorce until a marriage certificate and a report from the Central Registry of Divorce Proceedings are filed (r. 36(4)). In an uncontested or joint case, an affidavit in Form 36 sets out the facts, including the arrangements for any children's support (r. 36(5)), along with a draft divorce order (r. 36(6)).
6. A judge reviews the file. In most uncontested cases a judge decides on the paperwork, without anyone attending court (r. 36(7)). The judge must be satisfied that reasonable arrangements have been made for the children's support, and can hold back the divorce until they are (Divorce Act, s. 11(1)(b)).
7. The divorce takes effect. A divorce generally takes effect on the 31st day after the judgment (s. 12(1)). After that, either party can ask the clerk for a certificate of divorce (r. 36(8)).

In Toronto, divorce and property cases are heard at the Superior Court of Justice family court on University Avenue. Our Toronto family court guide explains which court handles which kind of case.

• Adultery or cruelty. A divorce can also be based on the other spouse's adultery, or on physical or mental cruelty of a kind that makes continued cohabitation intolerable (s. 8(2)(b)). These grounds need proof and often add conflict and cost, so most lawyers do not recommend going that route when a one-year separation is near.
• Short attempts to reconcile. Living together again for a period, or periods totalling, not more than 90 days, with reconciliation as the main purpose, does not interrupt the year of separation (s. 8(3)(b)(ii)).
• Children. A judge must see reasonable child support arrangements before granting a divorce (s. 11(1)(b)). Parenting time and decision-making can be dealt with in the same case or separately. See decision-making responsibility and parenting time.
• Property is not settled. A divorce can be granted before property is divided, but the divorce starts a two-year deadline for an equalization claim (FLA, s. 7(3)(a)). Our guide to the deadline to claim equalization shows how the limits interact.
• Spousal support. Support can be claimed in the divorce case, and a court cannot consider misconduct in making a spousal support order under the Divorce Act (s. 15.2(5)). See who is entitled to spousal support.
• One spouse does not cooperate. A sole application lets one spouse proceed alone. If the other files no answer, the applicant can file the Form 36 affidavit and ask for the divorce on paper (r. 36(5.1)).
• You separated in British Columbia. BC's Family Law Act treats people who lived in a marriage-like relationship for at least two years as spouses (s. 3), with different property rules. This page covers Ontario law.

For example, imagine a hypothetical couple, Morgan and Taylor, who decide to separate on March 1. Taylor moves into an apartment in April. They have one child, and they agree on a shared schedule and on child support, but not yet on how to deal with the house.

Their separation date is March 1, when they began living separate and apart with the intention of ending the marriage, even though Taylor moved out later. That date will likely be the valuation date for property. They file a joint divorce application in September. The court can accept the filing before the year is up, but cannot grant the divorce until at least March 1 of the following year.

In October they try living together again for six weeks. That is under the 90-day limit, so the separation clock does not restart. In April, the judge reviews their Form 36 affidavit, including the child support arrangements, and grants the divorce, which takes effect 31 days later. From that day they have two years to bring an equalization claim if they have not settled the house. The example is invented and shows the order of events, not a guaranteed timeline.

• Waiting a year to do anything. The one-year rule controls when a divorce is granted, not when you can sign an agreement or file. Property, support and parenting can all be resolved right away.
• Losing track of the separation date. It drives the divorce, the property valuation and a deadline. Write it down with what happened that day.
• Assuming the divorce settles everything. A divorce order ends the marriage. Property and support need their own agreement or order, and the divorce starts a two-year property deadline.
• Signing an agreement that is not witnessed. A domestic contract must be in writing, signed and witnessed to be enforceable (FLA, s. 55(1)).
• Signing without full disclosure. An agreement can be set aside if a party failed to disclose significant assets or debts (s. 56(4)(a)). See when an agreement can be set aside.
• Remarrying too soon. A divorce generally takes effect only on the 31st day after the judgment (Divorce Act, s. 12(1)).

1. Write down your separation date and what happened that day.
2. Find your marriage certificate, or note where you married so one can be ordered.
3. List what you each own and owe, and gather recent statements.
4. Keep a record of the parenting schedule since the separation, if you have children.
5. Agree on interim arrangements for the bills and the children in writing, even informally.
6. Read our article on marriage contracts if you signed one, and find your copy.
7. Book a consultation to talk through a separation agreement and the divorce timeline.

From handling separation agreements to guiding you through the divorce process, we provide tailored legal strategies to protect your interests. If both spouses agree on everything, an uncontested divorce is often the simplest and lowest-cost option, and it is usually handled without a court appearance. When there is more to resolve, we help you deal with property, support and parenting in the right order, so nothing is left open after the divorce. You can read about our principal lawyer, Trevor Smith. You can also meet the whole team.

Before you file, it helps to know how support will be worked out. Our guide to how child support is calculated is a good next step. So is our page on how property is divided.

Can we be separated while living in the same home?

It is possible. The Divorce Act looks at whether spouses lived apart with the intention of living separate and apart (s. 8(3)(a)), and separate lives can exist under one roof. Clear facts, such as separate bedrooms, finances and social lives, make it easier to prove.

Do we have to wait a year to file for divorce?

No. You can file sooner. The year must have passed by the time the court decides, and you must have been living separate and apart when the case started (s. 8(2)(a)).

Does my spouse have to agree to the divorce?

No. One spouse can file a sole application. A joint application needs both spouses' consent to every order (Family Law Rules, r. 36(2)).

Do we have to go to court?

Not usually for an uncontested divorce. The judge can grant it on the affidavit and draft order (r. 36(7)). A contested case may need conferences and hearings.

How long does a divorce take?

The law sets two fixed points: at least one year of separation before the divorce is granted, and 31 days after the judgment before it takes effect. Court processing time varies, so allow for it in your planning.

We were never married. Do we need a divorce?

No. Divorce is only for married spouses. Common-law partners resolve support, parenting and property claims through an agreement or a court case under other laws. See spousal support for common-law partners.

How long must I have lived in Ontario?

Either spouse must have been habitually resident in Ontario for at least one year immediately before the divorce case starts (s. 3(1)).

We serve families across Toronto from our office at 401 Bay Street. Our Toronto family court guide explains which court hears which case. Divorce and property cases are heard at the Superior Court of Justice family court on University Avenue. Support and parenting cases can also be heard at the Ontario Court of Justice family courts at 47 Sheppard and 311 Jarvis.