For couples going through a difficult phase in their relationship, one of the first questions that arises is whether to pursue a legal separation or go straight for a divorce. While both paths involve living apart and resolving financial and parenting issues, there are significant legal, financial, and emotional differences between the two—especially in Ontario.
At Aurigo Law, led by experienced Toronto divorce lawyer Arshi Chandel, we help individuals and families understand their legal options with clarity and compassion. Whether you’re considering ending your marriage or separating temporarily, this guide will walk you through the differences and help you decide what’s best for your situation.

Understanding the Differences Between Divorce and Separation

In Ontario, separation and divorce are two distinct legal processes, even though they both indicate the breakdown of a relationship.

Legal Separation (Not a Court Order)

In Canada, there’s no such thing as a “legal separation” document issued by the court. When you and your spouse decide to live separately—whether under the same roof or in different homes—you are legally separated from the day you stop living as a couple. You don’t need to file anything in court to be considered separated.
Instead, couples often formalize their terms in a Separation Agreement, which is a legally binding contract that outlines:

• Division of property
• Spousal support
• Child custody and access
• Child support
• Financial responsibilities

Divorce 

A divorce, on the other hand, is a formal legal process that ends your marriage permanently. Only a court can grant a divorce. Most divorces in Ontario are uncontested, meaning the couple agrees on all key issues beforehand, often outlined in a separation agreement. Once granted, divorce allows both parties to legally remarry.

Legal Rights and Responsibilities After Separation

Contrary to popular belief, separation in Ontario does come with enforceable legal obligations—even though the marriage is still legally intact.

During Separation:

• You and your spouse may still share ownership of assets such as the family home,pensions, or joint bank accounts.
• You are still entitled to spousal support (if eligible).
• Both parents retain equal rights and responsibilities regarding children unless stated otherwise in a formal agreement or court order.
• You can remain on your spouse’s health benefits (depending on the provider).

After Divorce:

• Your marriage is officially ended.
• You are free to remarry.
• Health insurance coverage typically ends unless addressed in the divorce order or
  agreement.
• Property division, if not previously addressed in separation, must be finalized.

Financial Implications of Divorce vs. Separation in Canada

1. Taxes and Benefits

• Separated individuals can file taxes as “separated” after 90 days of living apart.
• You may qualify for Canada Child Benefit (CCB), GST/HST credits, and other government
  programs based on your new household income.

2. Division of Property

In Ontario, the equalization of Net Family Property happens once—whether during separation or divorce. Many couples address it in the Separation Agreement, but it can also be handled during divorce proceedings.
Note: If property division is not resolved within six years of separation or two years after a divorce, you may lose your right to claim equalization.

3. Spousal and Child Support

Both are enforceable during separation and divorce. The Family Responsibility Office (FRO) can collect and enforce payments in either case.

How to Protect Your Assets During Separation

One of the most critical reasons to pursue a formal separation agreement is to safeguard your financial interests.

Key steps include:

• Disclose all assets and debts honestly (required for enforceability).
• Get a Separation Agreement drafted by a qualified family lawyer.
• Consider freezing or closing joint credit lines or accounts.
• Update beneficiaries on insurance, RRSPs, or wills.
• Consult an accountant regarding tax implications of spousal support and asset transfer.

“We’ve seen cases where one partner didn’t formalize separation for years—only to lose thousands when property wasn’t protected. A legally sound separation agreement helps you avoid that,” shares Arshi Chandel.

Steps to Take Before Filing for Divorce

If you’ve already separated and want to move toward a divorce, here’s how to prepare:
1. Confirm Eligibility

You must be separated for at least 12 months (no-fault) to file for a divorce in Ontario, unless there are grounds for cruelty or adultery.

2. Finalize a Separation Agreement

This shows the court that you and your spouse have resolved key issues like parenting, support,
and property.

3. Gather Documents

• Marriage certificate
• Financial disclosure forms
• Separation agreement
• Parenting plan (if applicable)

4. Decide on Application Type

• Simple Divorce – Filed by one spouse
• Joint Divorce – Filed together, when both parties agree
• Contested Divorce – Filed when one or more issues are unresolved

Case Example: Mira & Raj from Scarborough

Mira and Raj separated after 11 years of marriage. They lived under the same roof for four more months, sleeping in separate rooms and managing finances separately. They used Aurigo Law to draft a separation agreement and formally filed for divorce after 12 months of separation.
Because they had a clear agreement, their divorce was granted without delay, and they avoided a court battle altogether. This is a classic example of how a well-structured separation can pave the way for a smooth divorce.

What Option Is Right for You?