There are three grounds for divorce in Canada: (1) separation for a year; (2) adultery; or (3) physical or mental cruelty.

Separation – The Divorce Act requires that you have been ‘living separate and apart’ for one year.  ‘Living separate and apart’ does not necessarily mean in separate residences. If your relationship has ended but both spouses are still living in the home for one reason or another (money, kids, etc.), you may still be considered to be living ‘separate and apart’ if you are no longer behaving as though you were married.

Many couples share the same home for weeks, months or even years after they have technically ‘separated’. If you are sharing the same home for economic reasons, or for the sake of your children, or any reason other than an attempt to rescue the marriage, you can still be considered to be living ‘separate and apart’.

Parties can live apart under the same roof, and can still cohabit even if they live in separate locations. The courts look at various objective factors to determine if the parties are living apart or not. Greaves v. Greaves 2004 CanLII 25489 (ON S.C.).

Some of the criteria that judges consider when determining when a couple began ‘living separate and apart’ are:

(a) Physical separation;

(b) Withdrawal by one or both of the spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium;

(c) Absence of sexual relations is not conclusive, but is a factor to consider;

(d) Lack of communication between the spouses and discussion of family problems;

(e) Absence of joint social activities;

(f) Meal pattern;

(g) Performance of household tasks;

(h) Making plans for his or her assets as a separated person

(i) The relationship and conduct of each of them toward members of their respective families and how did such families behave towards the parties

(h) The financial arrangements between the parties regarding the provision of or contribution toward the necessaries of life (food, clothing, shelter, recreation, etc.):

Oswell v. Oswell, reflex, (1990), 28 R.F.L. (3d) 10 (Ont. H.C.J.), aff’d reflex, (1992), 43 R.F.L. (3d) 180 (Ont. C.A.);

Proof of Separation

In an uncontested or joint divorce, the only ‘proof’ of separation required by the court is your sworn Affidavit for Divorce (which we prepare) stating when you separated.