Separation

In Ontario there are two statutes that govern divorce, The Divorce Act  and The Family Law Act.  The Divorce Act provides that there is only one ground for divorce in Ontario which is marital breakdown. In order to prove marital breakdown there must be evidence of one of the following:

  • You and your spouse or common-law partner have been separated for one year;
  • Your spouse or common-law partner committed adultery;
  • Your spouse or common-law partner has been mentally or physically abusive;

In Ontario separation is one of the most commonly relied upon grounds to prove marital breakdown.

Do I need to apply for ‘legal separation’?

In Ontario there is no such thing as filing for ‘legal separation’. For you and your spouse or common-law partner to be deemed separated, you have to be living separate and apart for one year before you can get a divorce. This is the most commonly used grounds for divorce in Ontario.

Can we live in the same house and still be considered separated?

Living ‘separate and apart’ does not mean that you and your spouse or common-law partner have to be living in separate premises. You can still be living in the same dwelling and be considered living separate and apart. Although it is easier to prove separation if you are living in separate homes, the courts recognize that separated couples may need to remain living in the same household for the purposes of sharing mortgage payments, children etc. So no, you are not required to be living physically separately to prove separation.

Do I have to wait until the end of the one-year separation period before I can file for a divorce?

In Ontario you and your spouse or common-law partner must have one full year of uninterrupted separation before a divorce will be granted. This means that there must be one continual year of separation in which you did not reconcile with your spouse or common-law partner before the court will grant you a divorce.

Although the court will not grant the divorce until the one year period of separation between you and your spouse or common law partner expires, you can file for a divorce before that. You can file the paperwork for a divorce at any point during your separation but will have to wait until the end of the one year separation period before your divorce will be finalized.

Should I get a separation agreement?

The importance of trying to resolve things amicably with your spouse or common-law partner cannot be overstated. Separation agreements can be a vital tool in divorce proceedings that can allow couples to settle a number of issues without incurring the expense of bringing these matters before the court. At G Law Group we will work with you and your spouse or common law partner to prepare a separation agreement.

It is important that you and your spouse or common-law partner engage the expertise of a family lawyer when signing a separation agreement as it can be difficult to enforce a separation agreement that is not properly prepared.

It is always advisable to amicably come to an agreement without getting the court involved. At G Law Group we will work with you and your spouse or common-law partner to negotiate the terms of your separation so that you aren’t needlessly wasting energy and money later in the divorce proceedings.