Frequently Asked Questions

Divorce and Separation

What is the difference between divorce and separation?

Divorce means that a marriage has legally ended. Separation means that two partnerswho are married or who have been in a relationship without getting married (sometimes called “common-law” partners) decide to end their relationship and live separate lives.

Can a person be separated from their spouse without getting a divorce?

Yes, you can be separated from your spouse without getting a legal divorce. But, if you or your spouse wants to marry someone else, you must first get a divorce.

How can I file for a divorce?

You can file for a divorce if you can show that your marriage is not working, this means that your marriage has broken down and there is no chance that you will get back together.

How can I show that my marriage has broken down?

You can show that your marriage has broken down if:

You have been living separate and apart from your spouse for at least one (1) year. The one-year separation rule is not affected if you and your spouse get back together for no more than 90 days during the one-year separation period.
Your spouse committed adultery – this means that they cheated on you.
Your spouse has been physically or mentally cruel to you and you cannot live with them.

What are some things to know about living “separate and apart”?

You don’t have to live in a different house
If you cannot afford to live in a different house you can live in the same house, but you must not be doing things that a couple would do
If you are unsure, you should get legal advice from a lawyer for more information on what living separate and apart means

Do I need a lawyer to file for a divorce?

You can file for divorce by yourself, with your spouse, or with the help of a lawyer. You do not need a lawyer to file for divorce. If you and your spouse agree about getting a divorce and are able to discuss separation concerns openly and honestly, you may not need a lawyer.

Why would I need a lawyer to file for a divorce?

If you are concerned that your spouse may disagree with you about the details of separating like parenting arrangements, division of property or financial support, or if you are worried they may become violent or controlling, you should get independent legal advice or hire a lawyer.

How is a divorce started?

To apply for a divorce in Canada, you or your spouse must have lived in Canada for at least one year, immediately before applying for the divorce. You must apply for a divorce in a court that deals with family law issues, by putting together documents called an Application. An Application for Divorce starts the court process and explains what you want the court to decide and what order you hope to get from the court. You can file your Application with or without a lawyer.

Do I need my spouse’s permission to file for a divorce?

No. You do not need your spouse’s permission to apply for a divorce. You can file for a divorce on your own or they can do so on their own.

Can my spouse and I file for a divorce together?

Yes, you and your spouse can file for a divorce together. This is called a Joint Application.

When I file for a divorce can the court also decide on parenting arrangements for our child and other issues?

Yes. When you file for a divorce, you can also ask the court to decide about;

Decision-making responsibility and parenting time (previously called custody and access) for your child,
Child and spousal support; and
How to divide family property.

What does “common-law” partner mean in Ontario?

Couples who live together in a relationship but choose not to get legally married are sometimes called “common-law” partners. In Ontario, common-law partners have certain family law rights if:

they have been living together for 3 years or more, or
if they have a child together and have been in a steady relationship.

I am not married to my partner but our relationship has ended. Can we ask the court to make decisions about parenting arrangements for our children?

In Ontario, common-law partners have certain family law rights and can ask the court to make orders about decision-making responsibility and parenting time (previously called custody and access). Each province has different rules about who is considered to be a common-law partner, and what family law rights common-law partners have when they separate.

What family law rights do common-law partners in Ontario have?

Common-law partners in Ontario have the right to apply for decision-making responsibility or parenting time (previously called custody or access), for their child, child support, and spousal support when they separate.

Can common law partners who have separated in Ontario ask the court to decide on how to divide property?

Even though the law recognizes common-law relationships in many ways, the rules about dividing family property when married couples separate do not apply to common-law couples living in Ontario. In some cases, if you are ending a common-law relationship, the court may order that you have rights to share in family property that you do not own yourself. In many cases, common-law couples can only share in property to which they contributed. It is best to speak to a lawyer if this is your situation.