Legal Separation vs. Divorce in Ontario: Understanding the Differences
If your marriage has irrevocably broken down, you and your spouse will face a pressing and important decision about how to move forward. Two common paths are: 1) separation; and 2) divorce. Each of these has distinct legal implications under Ontario law.
This blog will briefly explore these concepts – and highlight the important differences – so you can make an informed decision on what to do next.
What Is a Legal Separation?
Although it’s common to use phrases like “legal separation”, in Canada that term is not used in the Family legislation. Instead, the law has set out differently-worded thresholds for determining the date on which your separation starts, depending on whether the issue is property division and related issues (under the Ontario Family Law Act) or whether it’s divorce and related issues (under the Divorce Act). However in most cases, it will be the same date regardless of which Act applies, with some narrow exceptions.
The Family Law Act refers to the “valuation date”, which is important when it comes to valuing and dividing up your marital property. It is defined as “the date the spouses separate and there is no reasonable prospect that they will resume cohabitation.”
Under the Divorce Act it’s a little more complicated, but (as will be discussed below), the separation date is the starting point for becoming eligible to get a Divorce Order. The Act clarifies that you and your spouse must have decided to live “separate and apart” for at least a year; the clock starts to run when you live separate and apart for any period and either of you had the intent to live separate and apart from each other. Certain periods of attempted reconciliation (i.e. 90 days or less) will not stop that clock.
Practically speaking, under either definition your separation begins when you and your spouse officially decide that going forward you will live separately with no chance at getting back together. At this stage, you have not yet formalized the end to your marriage, but have decided that the relationship is over.
From here, you may or may not divorce (though most couples do); either way you can begin the process of negotiating and documenting your agreed terms for the various short- and long-term issues that arise from your decision to separate.
Related: What is Legal Separation?
Separation Agreements
On the point of your agreed terms: Once you have formally separated within the meaning of the Ontario Family Law Act, you may want to create a separation agreement. This is a legally binding document that outlines your mutual decisions for the next stage, including the time leading to your divorce (if that’s what you choose). A separation agreement can cover:
- Division of property and debts
- Parenting time and decision-making responsibility for children
- Child and spousal support
The Family Law Act governs most aspects of creating valid separation agreements in Ontario.
Why Choose (Only) Separation?
- Flexibility: Separation agreements allow you and your spouse to tailor solutions to your unique circumstances, without having to go to the formal step of a divorce.
- Religious or Personal Reasons: You may want to avoid divorce due to religious beliefs, or because one or both of you hope for an eventual reconciliation.
- No Formal Court Process Required: While separation agreements can be court-enforced if necessary, you may be able to resolve your issues privately, without having to incur the time and costs of a formal legal process.
What Is Divorce?
In contrast to a separation, divorce is a much more formal process that has the effect of legally dissolving your marriage. It is governed by the federal Divorce Act, and is the only valid way to officially end your marriage in Canada.
A Divorce Order conclusively terminates your relationship, and allows both you and your spouse to remarry if you wish.
Grounds for Divorce
Under the Divorce Act, there is only one ground for divorce: The “breakdown of the marriage”. That threshold can be proven by any of the following:
- You and your spouse living “separate and apart” for at least one year
- Adultery
- Cruelty
Since it is necessary to provide proof of adultery and cruelty (and is relatively difficult to do so), the most common ground that divorcing couples use is merely to live separate and apart for a year. This avoids either of them having to prove the other is at fault.
Related: What Are the Grounds for Divorce in Ontario?
The Divorce Process
- Filing for Divorce: One or both of you can file an application in the Ontario Superior Court of Justice.
- Resolution of Issues: Before agreeing to grant your divorce, the court will generally require you and your spouse to resolve your disputes around matters such as spousal and child support, and parenting time and decision-making. However, the court may also impose a resolution on you both.
- Final Divorce Order: Once all issues are resolved, the court can issue a Divorce Order that is effective 31 days later.
Related: The Divorce Process in Ontario
Why Choose Divorce?
- Finality: Divorce formally ends the marriage, providing closure.
- Right to Remarry: Only with a divorce order in hand, can you or your spouse choose to remarry.
- Judicial Oversight: Given the intervention of the Court, you are assured that any issues involving your children or financial matters have been resolved reasonably fairly.
Key Differences Between Legal Separation and Divorce
| Issue | Separation (only) | Divorce |
| Marital Status | Remain legally married | Marriage is legally ended |
| Documentation | Separation agreement (optional but very common) | Divorce Order (court-issued) |
| Right to Remarry | Not allowed | Allowed |
| Religious Considerations | No impact | May require additional steps (e.g., religious annulment) |
| Process | Negotiation-based | Court-based (usually) |
Implications for Property, Support, and Custody
Regardless of whether you remain merely separated or proceed on towards a legal divorce, Ontario’s Family laws protect the rights of both of you as spouses, as well as your children. Here are some of the key points to know:
- Property Division: Under the provincial Family Law Act, your separation will trigger the equalization of your respective Net Family Property, regardless of whether you choose to go forward all the way to a divorce.
- Spousal and Child Support: Whether you have a court-issued Divorce Order or merely a separation agreement after your split, the terms must adhere to the standards set by the Child Support Guidelines and the Spousal Support Advisory Guidelines.
- Parenting Orders: Both the separation and divorce processes address parenting time and decision-making responsibilities in the child’s best interests, as outlined in the Divorce Act (for married spouses) and Family Law Act (for unmarried or separated spouses).
Choosing the Right Path
Whether it’s best for you to divorce or merely separate will depend on your goals and circumstances. For some, separation agreements provide enough structure to move forward. For others, divorce is essential to finalize the relationship, bring “closure”, and pursue new beginnings.
If you are contemplating or have already undergone a separation, and you want to explore your legal options, give our offices a call for some tailored advice.