If you are married and are thinking about getting a divorce, you may be aware that there is a period of legal “separation” that must be fulfilled under Ontario family law before you can obtain a divorce.
Ontario is a no-fault divorce jurisdiction. This means that if you are married, you can seek a divorce from your spouse for any reason- there is no need to find that any fault or misconduct has occurred. However, a party who is seeking a divorce under the no-fault divorce ground of “breakdown of marriage” per Section 8(1) of the Divorce Act must have lived “separate and apart” for at least one year immediately before a divorce proceeding is determined. For more information on what it means to be legally “separated”, please see our blog What is the Difference Between Legal Separation and Divorce in Ontario.
In short, married parties are deemed to be separated for any period during which they lived apart and either of them had the intention to live separate and apart from the other.
Where Moving Out Does and Does Not Mark the Date of Separation
It is common that the date on which a spouse moved out of their shared residence with the other spouse to mark the date of their separation.
However, there are some situations in which a spouse might move out from the residence they shared with their other spouse, yet they may not be considered to be separated from each other. There are two general reasons why this can the be the case. The first is that the parties may no longer live together, but may still effectively be in a relationship. Factors that are considered when determining whether the parties are still together include the following:
- Whether the parties hold themselves out to each other and to others as separated. Do they refer to each other as husband or wife or spouse when speaking to others?
- Whether the parties engage in shared life routines. Even if they live in separate residences, do the spouses prepare food for each other, share meals, complete chores for each other?
- Has there been a cessation of a conjugal functions between the spouses?
- How do the spouses communicate with each other? Do their communications indicate they are still relying on one another for things such as emotional support?
No single one of the above factors is determinative on its own. Rather, all of the factors are viewed as a whole to determine whether they have ended the relationship. If two spouses no longer live in the same residence, but hold themselves out to others as still being married, using each other for emotional support, engaging in social activities and maintaining shared life routines – they may not be deemed to be separated in the eyes of a Court.
The second general reason why a spouse moving out of a shared residence might not mark the date of separation is because the parties might have reconciled later on. Under the Divorce Act, if a couple reconciles for more than 90 days and then separates once again, they are considered to be separated starting on that second date. This means that spouses can reconcile for up to 90 days without affecting their date of separation.
As shown above, it can be complex to determine whether the 1-year separation period has started to run- even where you or your spouse has moved out of the shared residence. Therefore, we advise that you consult a Licensed Family Law Practitioner on the subject to better understand your situation.