Am I Eligible for Divorce in Ontario? Key Requirements Explained

Requirement 1: You Must Be Legally Married

To file for divorce in Ontario, you must be legally married. This applies whether the marriage took place in Ontario, elsewhere in Canada, or in another country. Marriages performed abroad are generally recognized in Canada if they were valid where they occurred. Common law relationships do not qualify for divorce — there is no ‘common law divorce’ in Ontario.

Requirement 2: One-Year Ontario Residency

At least one spouse must have ordinarily resided in Ontario for at least one year immediately before filing the divorce application. If you recently moved to Ontario, you must wait until you have lived here for one year. If you or your spouse live elsewhere in Canada, the divorce can potentially be filed in the province where one of you has resided for the required period.

Requirement 3: Marriage Breakdown Must Be Established

You must be able to establish that the marriage has broken down. The Divorce Act recognizes three grounds: separation of at least one year (by far the most common), adultery committed by the respondent spouse, and physical or mental cruelty by the respondent that has rendered continued cohabitation intolerable.

The One-Year Separation Period

The one-year separation period can begin even if the parties are still living in the same home, provided they are living separate and apart within that home. To be living separate and apart, there must be a breakdown of the marital relationship, demonstrated by factors such as separate sleeping arrangements, separate finances, and the absence of marital relations.

Can I File Before One Year Is Up?

You can file the application at any time after separation, but the divorce cannot be granted until one year of separation has elapsed. Filing early can help get the process started and may be advisable where there are property or support issues to address, even if the divorce itself will not be granted for some time.

Are There Bars to Divorce?

Under the Divorce Act, a court may not grant a divorce if there is a possibility of reconciliation that has not been explored, if the court is not satisfied that reasonable arrangements have been made for the support of any children of the marriage, or if there is collusion between the spouses (for example, a fabricated adultery claim).

What About Foreign Divorces?

A divorce obtained in another country may be recognized in Canada if both spouses were ordinarily resident in that country at the time of the divorce. Questions about foreign divorce recognition should be addressed with a qualified family law lawyer.