At a Glance
- Ontario has no court filing or registry for legal separation. Spouses are separated once they begin living separate and apart because their relationship has ended without the possibility of reconciliation.
- A separation agreement can settle parenting, support and property issues, but it does not legally end the marriage.
- Only a divorce legally ends a marriage and allows either spouse to remarry.
- Most divorces in Ontario are based on spouses living separate and apart for at least one year.
- Divorce does not automatically divide property or determine support. These issues can be resolved through a separation agreement, mediation, arbitration or litigation in court.
- Timing matters. Divorce starts a two-year deadline for property equalization claims under Ontario’s Family Law Act, which can shorten the time available to make a claim.
People who decide to end a marriage often start by searching for how to file for legal separation in Ontario. What many discover is that there is nothing to file. Separation begins when spouses start living separate and apart because the relationship has ended. Divorce, if they choose it, requires a court order to formally end the marriage.
A separation agreement deals with the practical or corollary issues that come with separating, including parenting, support and property. It does not end the marriage.
That distinction is at the heart of separation vs. divorce. Many Ontario couples use both. They separate, negotiate an agreement and later apply for divorce once the one-year separation period has passed. Others remain separated indefinitely without divorcing.
This guide explains what each option does, how they work together and what changes when you go from separated to divorced.
What Does Being Legally Separated Mean in Ontario?
In Ontario, spouses are separated when they begin living separate and apart without the possibility of reconciliation. There is no legal separation application, registration or new legal status to obtain.
Living separate and apart does not necessarily mean having different addresses. Spouses can remain under the same roof while leading separate lives, such as sleeping in different rooms and managing their finances independently.
The date of separation matters because it can affect property calculations and legal deadlines. Spouses should keep a record of when the relationship ended and, where possible, agree on the date.
What Is a Separation Agreement?
A separation agreement is a written contract setting out how two people will handle the issues arising from their separation. Under Ontario’s Family Law Act, it can cover property division, spousal and child support, decision-making responsibility and parenting time. Both married spouses and common-law partners can use one.
To be enforceable in Ontario, the agreement must be in writing, signed and witnessed. Each person should also receive independent legal advice before signing to ensure their understanding of the agreement. Complete financial disclosure is important because an agreement may be challenged if significant assets or debts were not disclosed or one spouse did not understand its consequences.
Caspersz Chegini LLP prepares and reviews separation agreements and other domestic contracts, including marriage contracts and cohabitation agreements.
What Is a Divorce in Ontario?
Unlike a separation agreement, a divorce legally ends the marriage. Divorce is governed by the federal Divorce Act, with applications in Ontario made to the Superior Court of Justice.
The legal ground for divorce is breakdown of the marriage. This can be established through adultery, cruelty or living separate and apart for at least one year. The one-year separation route is the most common.
At least one spouse must have lived in Ontario primarily for one year before applying in the province. A divorce normally takes effect on the 31st day after it is granted. Either spouse can then obtain a certificate of divorce as proof that the marriage has legally ended.
Separation vs. Divorce in Ontario: Key Differences
The simplest way to understand divorce vs. separation is that they achieve different things: A separation agreement can resolve the issues created by the end of the relationship, while a divorce legally ends the marriage itself.
Issue | Separation With a Separation Agreement | Divorce |
What is it | A private written contract between the spouses | A court order under the federal Divorce Act |
Who can use it | Married spouses and common-law partners | Married spouses only |
Ends the marriage | No | Yes |
Waiting period | None once the spouses have separated, but six (6) years after the date of separation if addressing equalization | Usually one year of living separate and apart, except in the case of adultery and/or cruelty in the marriage |
Court involvement | Not required, although support terms can be filed with the court for enforcement | Required |
Settles parenting, support and property | Yes, if the agreement addresses those issues within the statute of limitations on such claims | Not on its own |
Allows remarriage | No | Yes, once the divorce takes effect |
Deadline to claim property equalization | Six (6) years after the date of separation | Two (2) years after the divorce or six (6) years after separation, whichever is earlier |
Many couples do not have to pick one or the other. When comparing divorce vs. separation, it helps to see them as tools with different jobs: the agreement settles the issues, and the divorce ends the marriage.
Separation Agreement vs. Divorce Decree: Which Document Does What?
When comparing a separation agreement vs. divorce decree, keep in mind that Ontario courts use the term “divorce order” rather than “divorce decree.” Once the divorce takes effect, a certificate of divorce provides proof that the marriage has ended. This permits either party to remarry.
A separation agreement formalizes what spouses have agreed to about issues such as property, support and parenting. A divorce order ends the marriage and may also contain parenting or support terms if those issues were part of the court proceeding.
Do You Need a Separation Agreement Before Getting a Divorce?
No. You do not need a separation agreement before applying for divorce in Ontario. A divorce can proceed even when some financial, property or parenting issues remain unresolved.
Having an agreement can make the process simpler. If those issues are already settled, spouses may be able to proceed with a simple or joint divorce rather than asking the court to decide them.
Where children are involved, the court must be satisfied that reasonable arrangements have been made for their support before granting a divorce. If spouses cannot agree on parenting, support or property, those issues can be addressed through negotiation, family mediation, arbitration or court.
How Long Do You Have to Be Separated Before Divorcing in Ontario?
For most divorces in Ontario, spouses must live separate and apart for at least one year before the divorce can be granted. You can start the application earlier, but the court cannot grant a divorce based on separation until the year is complete.
Spouses can try living together again for up to 90 days in total for the purpose of reconciliation without restarting the one-year period.
A separation agreement has no waiting period. Spouses can begin negotiating an agreement immediately after separating. Divorces based on adultery or cruelty also do not require the one-year wait, although those grounds must be proven.
Legally Separated vs. Divorced: What Changes Financially?
Being legally separated vs. divorced can affect property rights, deadlines, the matrimonial home, benefits and estate planning. Some changes are tied to the date of separation, while others occur only after divorce.
Property: For married spouses, the Family Law Act generally uses the date of separation to value property for equalization. An equalization claim must usually be started within six (6) years of separation or two (2) years after divorce, whichever comes first. Divorce can therefore shorten the time available to bring a claim. Caspersz Chegini LLP advises separated and divorcing spouses on property division.
Support: Child support obligations continue whether parents are separated or divorced. Spousal support can be addressed through a separation agreement or court proceeding. Learn more about child and spousal support after a relationship ends.
The Matrimonial Home: Married spouses generally have an equal right under Ontario’s Family Law Act to possess the matrimonial home while they are spouses, regardless of whose name is on title. Separation does not automatically end that right.
Benefits, insurance and pensions. Plans and policies may treat separated and divorced spouses differently. Their individual terms should be checked before assuming coverage or entitlements will continue.
How Separation and Divorce Affect Wills and Estates
Ontario’s Succession Law Reform Act can treat separated spouses much like former spouses for wills and intestacy. Generally, the spouses must have been living separate and apart at death and either separated for at least three (3) years immediately before death because of the breakdown of the marriage or have a separation agreement, court order, or family arbitration award settling their affairs.
After separation, it is also worth reviewing wills, powers of attorney and beneficiary designations. Life insurance and registered account designations which may not change automatically when the relationship ends.
What Are the Benefits of Remaining Separated vs. Getting Divorce?
The choice between being divorced vs. separated can depend on what each spouse needs after the relationship ends. Reasons may include:
- Religious or cultural beliefs;
- More time before formally ending the marriage;
- Possible continued eligibility under a spouse’s workplace benefits, depending on the plan; or
- Avoiding the court application, fees and waiting period required for divorce.
When considering the benefits of legal separation vs. divorce, remember that remaining married does not mean leaving everything unresolved. A separation agreement can settle parenting, support and property matters. What it cannot do is allow either spouse to remarry.
What If You Were Never Married?
Common-law partners do not divorce because there is no legal marriage to end. They can still use a separation agreement to address parenting, child support, spousal support and jointly-owned property.
Property rights differ from those of married spouses. Ontario’s equalization of net family property does not apply to common-law partners. Property disputes generally depend on ownership and, in some cases, principles such as unjust enrichment.
Common-law partners may still qualify for spousal support after living together for at least three (3) years, or sooner if they have a child together and have been in a relationship of some permanence.
How a Family Lawyer Can Help with Separation and Divorce
When weighing divorce vs. separation, timing can affect property deadlines, support and other rights. A family lawyer can help confirm the date of separation, review financial disclosure, calculate net family property, negotiate an agreement and advise on support or divorce proceedings.
If parenting or support terms are later included in a court order and circumstances change, the terms may need to be updated through a new agreement or a Motion to Change.
If spouses cannot agree, a lawyer can also represent them through negotiation, mediation or court. Caspersz Chegini LLP focuses exclusively on family law and advises clients across Ontario on divorce and separation, domestic contracts, support, property division and litigation.
Speak With an Ontario Family Lawyer About Separation or Divorce
If you have recently separated or are considering divorce, getting legal advice early can help you understand what needs to be resolved and which deadlines may apply.
Caspersz Chegini LLP advises clients throughout Ontario on separation agreements, divorce applications, support, property division and parenting arrangements.
Contact Caspersz Chegini LLP to schedule a consultation about your separation or divorce.
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Frequently Asked Questions About Separation and Divorce in Ontario
What are the benefits of legal separation vs. divorce?
Staying separated allows spouses to settle parenting, support and property issues through a separation agreement without legally ending the marriage. Some couples choose this for religious or personal reasons, to preserve possible workplace benefits or because they are not ready to divorce. The key limitation is that neither spouse can remarry until they are divorced.
Can you be separated and live in the same house in Ontario?
Yes. You can be separated in Ontario and continue living in the same home if the relationship has ended without the possibility of reconciliation. This may include sleeping in separate rooms, eating separately and managing finances independently. Keeping a clear record of the separation date can help avoid disputes later.
Is a separation agreement legally binding in Ontario?
Yes, a separation agreement can be legally binding in Ontario when it is in writing, signed by both spouses and witnessed. It may still be challenged in certain circumstances, such as when significant assets or debts were not disclosed. Having separate legal advice before signing can make the agreement more difficult to challenge later.
How much does it cost to file for divorce in Ontario?
Ontario court fees for a divorce total $669. This includes $214 to file the application, a $10 federal fee and $445 when the application is placed on the list for hearing. Legal fees are separate and depend on whether the divorce is contested. Some applicants may qualify for a fee waiver. This also does not include the cost of personal service of the divorce application as required under the Rules.
Can you remarry if you are separated but not divorced?
No. Separation does not legally end a marriage, so you cannot remarry while you are still married to your spouse. In Ontario, a divorce normally takes effect on the 31st day after the divorce order is granted. You can then obtain a certificate of divorce as proof that the marriage has ended.
Does a separated spouse inherit in Ontario?
Not necessarily. Ontario law can treat a separated spouse much like a former spouse for inheritance purposes if certain conditions are met. This can apply when spouses were living separate and apart at the time of death and had been separated for at least three (3) years immediately before death, or have a separation agreement, court order, or family arbitration award dealing with their affairs. Wills and beneficiary designations should still be reviewed after separation.
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