No-Fault Divorce in Ontario: Definition and Grounds
In Canada’s Divorce Act, “marriage breakdown” is the sole ground for divorce – reflecting a no-fault approach to divorce. The law sets out three ways to prove a marriage has broken down (any one of these is sufficient):
- Living separate and apart for at least one year. This is the most common no-fault ground for divorce in Ontario. If you and your spouse have been separated for one year or more, the court will accept that the marriage has broken down.
- Adultery. Proof that your spouse committed adultery (cheated during the marriage) can serve as a fault-based ground for divorce.
- Cruelty. Proof that your spouse subjected you to physical or mental cruelty can also be a fault-based ground.
In practice, the vast majority of Ontario divorces proceed on the no-fault ground of one-year separation. Even though adultery or cruelty are legally recognized reasons to divorce, they are used much less often. Ontario’s court system almost always processes divorces based on a one-year separation, which is why most divorces here are considered “no-fault,” even when misconduct (like infidelity) occurred. In a no-fault divorce, you simply confirm that you’ve lived apart for the required time, and the court does not need details of any marital wrongdoing.
By contrast, a fault-based divorce would require one spouse to prove the other’s misconduct (for example, providing evidence of adultery or abuse) as the direct cause of the marriage breakdown. This can make the process more adversarial and complex. In Canada’s modern system, there is no legal advantage to pursuing a fault-based divorce – it does not lead to a better financial settlement or custody outcome. In fact, trying to prove fault often makes a divorce longer, more expensive, and more emotionally stressful for both parties. That is why a simple no-fault separation is preferred by many couples when ending a marriage.
Benefits of a No-Fault Divorce
No-fault divorce offers several important benefits for divorcing couples in Ontario:
- Simplicity and Speed:
Removing the need to prove spousal wrongdoing typically makes the legal process much simpler and faster. You don’t have to gather evidence of misdeeds or endure a prolonged trial over who was “at fault.” This often allows for quicker resolutions, reducing how long it takes to finalize the divorce. With fewer contentious issues to litigate, a no-fault divorce can move through the courts more efficiently.
- Lower Conflict and Stress:
Because no accusations or proofs of wrongdoing are required, the tone of the divorce process is generally less hostile. Spouses can focus on practical arrangements (like dividing assets and caring for children) rather than blaming each other. This can significantly reduce emotional tension. In cases involving children, a no-fault approach often leads to a more amicable post-divorce relationship between the parents, which benefits everyone.
- Reduced Cost:
A simpler, less contentious process usually means lower legal fees and court costs. No-fault divorces often proceed as uncontested or joint applications, avoiding the expense of a drawn-out court battle. In fact, a no-fault divorce can sometimes be completed without either party ever appearing in court, especially if both spouses agree on terms. This makes it a more affordable option than trying to prove fault.
- Privacy and Dignity:
No-fault divorce helps maintain personal privacy and dignity, since the intimate details of any marital misconduct don’t need to be aired in public court proceedings. The divorce filings will simply state that the marriage broke down due to a one-year separation (or “irreconcilable differences”), rather than cataloguing allegations of adultery or abuse. This confidentiality can make the process less painful and intrusive for both spouses.
- Fairness in Settlements:
Because blame is not a factor, decisions about property division, support, and parenting are based on neutral legal standards – not on who “caused” the breakup. This helps ensure outcomes that focus on needs and entitlements under the law, rather than punishing one spouse for bad behavior. (We’ll discuss more on how fault doesn’t affect settlements in the next section.)
In summary, Ontario’s no-fault approach makes divorce more straightforward, less acrimonious, and often less damaging emotionally and financially. It allows couples to end their marriage with less drama and conflict, which can be especially important when children are involved.
The No-Fault Divorce Process in Ontario
How do you get a no-fault divorce? In Ontario, the key requirement is that you and your spouse have lived “separate and apart” for at least one full year before the divorce can be finalized. This one-year separation period is the evidence of marriage breakdown in a no-fault divorce. Importantly, you cannot get an immediate divorce just by filing – even in a no-fault case, a waiting period of at least 12 months of separation is mandatory by law. (The only exceptions to the one-year wait are the fault grounds of adultery or cruelty, which allow an earlier filing, but those cases still typically take longer due to the need to prove the allegations.)
What counts as “separate and apart”? Generally, it means you and your spouse have decided to end the marriage and are living separate lives. Often one person moves out of the matrimonial home, but not always. It is possible to live separate and apart under the same roof – for example, if you occupy different bedrooms and no longer function as a couple (no sexual relationship, separate finances, separate social lives, etc.).
The key is that for at least 12 consecutive months, you have not lived together as a married couple in any meaningful way. (Canadian law even allows a brief 90-day attempt at reconciliation within that period without restarting the clock, in case you try to work things out and it doesn’t succeed.)
Aside from the separation period, there are a few other procedural steps to complete a no-fault divorce in Ontario:
Meet the residency requirement
At least one spouse must have been ordinarily resident in Ontario for 12 months immediately before starting the divorce application. Essentially, you or your spouse needs one year of residence in the province to file here. (Divorce is federally governed, but the process is handled by provincial courts, so residency matters.)
Prepare the divorce application
You (or your lawyer) will fill out the required court forms – usually an Application for Divorce. In an uncontested no-fault divorce, you might use Form 8A (a simple application) where you indicate the ground for divorce is the one-year separation. The application will also set out any claims for child support, custody, spousal support, or property division that need to be resolved.
File the application with the court
The completed forms are filed in the Ontario Superior Court of Justice (Family Court). A filing fee is paid at this time. The court will issue an official court file number and a Divorce Application that must be served on the other spouse.
Serve your spouse
If it’s a joint application, both of you will sign and no service is needed. But if only one spouse files (a sole application), the documents must be formally delivered to the other spouse (this is called service). This gives them a chance to respond or contest any claims. In a friendly no-fault divorce, the other spouse often doesn’t dispute anything, making it an uncontested divorce.
Obtain the Divorce Order
If all paperwork is in order and any waiting periods have been satisfied, the court can grant a Divorce Order dissolving the marriage. In an uncontested no-fault case, this often happens without the need for a court hearing – a judge will simply review the documents and sign the order. The divorce becomes final 31 days after the Divorce Order is issued (this appeal period is standard), at which point you can obtain a Certificate of Divorce for proof of marital status.
In many cases, a no-fault divorce in Ontario is a relatively straightforward paperwork process. If both spouses agree and all forms are filed correctly, nobody may ever need to appear in court in person. However, complications can arise if there are disagreements about children, support, or property – those issues might require negotiation or court hearings (even though the ground for the divorce remains no-fault). It’s often advisable to work with a family lawyer to ensure all requirements are met and to handle any settlement negotiations.
Does Fault Affect Property Division or Child Custody?
A major feature of no-fault divorce is that marital misconduct has no impact on how finances or parenting arrangements are decided. In Ontario, when it comes to dividing property, awarding support, or determining child custody, the courts do not consider which spouse was “to blame” for the breakup. All those issues are resolved on neutral principles of law, not on moral judgments about either spouse’s behavior.
Property Division
Ontario uses an equalization of net family property system to divide assets after a marriage. Each spouse’s increase in net worth during the marriage is calculated, and the spouse with the higher increase pays half the difference to the other (so that both end up with equal net gains). Notably, marital misconduct – such as adultery or other unfaithful behavior – does not affect the division of property. Even if one spouse feels wronged by the other’s actions, the law does not award a greater share of assets as “compensation” for that.
Assets and debts are split according to the equalization formula, regardless of who was at fault for the marriage breakdown. (Property that one person owned before the marriage or received as a gift/inheritance during the marriage may be excluded from sharing, but that’s based on property law rules, not anyone’s bad behavior.) Only in very rare circumstances will a court depart from equal division – for example, if one spouse maliciously squandered assets just before separation, a judge might adjust the split. But ordinary misconduct like cheating has no bearing on property settlements.
Spousal Support
Similar principles apply to spousal support (alimony). Whether support is granted, and how much, depends on factors like the spouses’ incomes, earning potential, ages, and contributions during the marriage – not on whether someone was a “bad” spouse.
A spouse who was unfaithful or otherwise at fault will not be financially penalized by being forced to pay extra support; conversely, a spouse who was faithful does not get a bonus. The goal of support is to alleviate economic hardship and fairly share the consequences of the marriage ending. The needs and means of the parties drive support decisions, not marital blame.
Child Custody and Parenting Time
Decisions about children are governed by the best interests of the child – this is the paramount principle in Ontario family law. A parent’s past mistakes in the marriage (infidelity, arguments, etc.) generally do not impact custody or visitation arrangements unless that behavior directly affects their parenting ability or the child’s well-being.
For example, the court doesn’t punish a parent for cheating by reducing their custody time. What matters instead are factors like each parent’s caregiving capacity, stability, the child’s needs, and the child’s relationship with each parent. Unless misconduct has a clear link to the child’s welfare (such as evidence of abuse or neglect), it won’t influence the parenting plan. In other words, a parent won’t lose custody simply for being at fault in the marriage; the focus remains on providing the best environment for the child.
Overall, Ontario’s no-fault divorce regime keeps financial and custody matters separate from the reasons for the marriage breakdown. This can be reassuring – for instance, you don’t need to worry that a past mistake will cost you your share of the family property or time with your kids. Even in cases of bad behavior, the court’s view is that the divorce itself is remedy enough (it frees both parties to move on), and it will not use property division or custody to punish wrongdoing. The outcome of these issues is determined by law and evidence, not by casting blame.
Bottom Line
No-fault divorce has fundamentally changed divorce for the better by removing the need for an adversarial “blame game.” In Ontario, neither spouse has to prove the other was at fault to end the marriage – it is enough to show that the relationship has broken down. This approach tends to reduce conflict and focus the process on resolution rather than recrimination. It’s important to note, however, that no-fault divorce doesn’t mean you won’t have any disputes; couples may still disagree on finances or child arrangements, but those disputes are resolved under fair legal standards instead of being inflamed by allegations of fault.
If you are considering a divorce, understanding the no-fault system can help set realistic expectations. You should be prepared for the one-year separation requirement and know that personal misconduct likely won’t give you an advantage (or hurt you) in the settlement. A divorce in Ontario is essentially about untangling legal and financial ties and ensuring any children are cared for – not about proving who was right or wrong in the marriage.
Given the complexities that can still arise (paperwork, negotiations, etc.), consulting with an experienced family lawyer is a wise step. They can guide you through the process, help you reach a fair agreement, and make sure your rights are protected every step of the way. With the no-fault divorce framework in place, you can focus on the future and a hopeful resolution, rather than dwelling on the past blame.