Living “Separate and Apart” Under the Same Roof

Grounds for Divorce in Canada (Ontario)

Under Canada’s Divorce Act, a divorce is granted only if the marriage has broken down due to one of three grounds: (1) the spouses have lived separate and apart for at least one year; (2) one spouse’s adultery; or (3) one spouse’s physical or mental cruelty making cohabitation intolerable. In practice, most divorces proceed on the no-fault ground of a one-year separation. If a couple cannot allege adultery or cruelty, they must establish a one-year period of living “separate and apart” to qualify for a divorce. Crucially, this does not always require maintaining separate residences – spouses may be legally “separated” even while living under the same roof, as long as they meet the legal test for living separate and apart.

Living “Separate and Apart” Under the Same Roof

Canadian courts recognize that financial or family circumstances may force spouses to remain in one household after their relationship ends. The mere fact of sharing an address is not conclusive of cohabitation – “cohabitation” means more than simply living in the same home; it implies living together in a conjugal (partner-like) relationship with mutual marital duties and obligations. Accordingly, a couple can be found to be living separate and apart even if they stay in the same house, provided they have truly ceased functioning as a married unit. Ontario courts have explicitly stated that just because a spouse remains in the same house for reasons of economic necessity does not mean that they are not living separate and apart. In other words, spouses who can’t afford to maintain two households can still meet the separation requirement by effectively living independent lives apart from each other within one home.

To prove a separation under one roof, the spouses must present clear evidence that their marital relationship has ended in everything but name. Courts will look for a genuine intent by one or both spouses to end the marriage, coupled with an end to the normal habits of married life. No single factor is decisive; judges undertake a holistic analysis of the couple’s situation, asking whether there is “no reasonable prospect” of reconciliation and weighing objective indicators of separation. Over time, Ontario courts have developed a set of criteria to assess if spouses are separate and apart while cohabiting. Key factors include:

• Physical separation within the home – e.g. sleeping in separate bedrooms. The spouses should lead separate lives domestically. Importantly, a spouse who stays in the same house solely due to financial constraints can still be considered “separated” in law.

• Withdrawal from the marital relationship – one or both spouses must have withdrawn from the matrimonial obligations with the intent of ending the marriage. A clear, communicated decision by at least one spouse to terminate the relationship is highly relevant. Notably, the decision to separate need not be mutual – the law does not require a meeting of the minds, so long as one spouse’s intent to live apart is evidenced.

• Lack of sexual relations – whether the spouses have ceased intimacy. The absence of sexual relations is a strong sign of separation, though it is not conclusive on its own.

• Reduced communication and shared activities – for example, whether the spouses still discuss family problems or confide in each other, whether they continue to attend social events together as a couple, and whether they share meals or leisure time. A significant decline or end in these normal spousal interactions suggests the marriage has ended.

• Changes in household arrangements – changes in how domestic chores and responsibilities are divided may be considered, especially if one spouse stops performing tasks they used to do for the other. However, courts give greater weight to more intimate aspects of the relationship (like companionship and support) than to routine housekeeping, since chores can be done by anyone and are less unique to a marriage.

• Evidence of “true intent” to separate – courts look for objective signs that each spouse views the marriage as over. Examples include starting to manage finances separately, making independent plans for property or assets, or representing oneself as separated in official documents. For instance, judges often consider how each spouse filed their income tax returns – filing as “separated” or no longer as a couple is a strong indicator of genuine separation. The court is mindful of whether a spouse’s actions align with an intention to end the marriage, as opposed to any contrary words or occasional conciliatory behaviour.

These factors are assessed collectively – no one factor is determinative and every marriage is different. The overarching question is whether the spouses have truly ceased to live together as a married couple, despite living under one roof. Courts will distinguish between a couple that is merely experiencing marital discord while still cohabiting, and a situation where they are living as two separate individuals in the same home with no remaining marital consortium. If the evidence shows the latter, the legal requirement of living “separate and apart” is satisfied.

Applying the Separation Ground in Practice

For couples who cannot afford to maintain separate homes, the above principles provide a path to divorce on the one-year separation ground. They must essentially demonstrate to the court that they separated in all but physical location at least one year ago. In practical terms, this means establishing a clear separation date – often the point when one spouse communicated an intention to end the marriage and the parties stopped behaving as a couple. From that date forward, they should be prepared to show a pattern of separate living: minimal personal interaction, independent daily routines, and no continuing spousal intimacy or joint social life. Consistency is important; for example, if they present themselves to others as separated and take steps like dividing finances, it corroborates their claim that the marriage was over despite the shared address. The one-year clock for divorce can run while they live under one roof, so long as they maintain this separated status. The Divorce Act even permits spouses to attempt a brief reconciliation of up to 90 days without restarting the one-year period, allowing couples to test a reunion without losing their place in time.

Ontario courts have repeatedly affirmed that financial necessity or housing challenges do not bar spouses from being legally separated. In Taylor v. Oliver (2022), for example, the Superior Court reiterated the well-known proposition that parties can be separated while living together in the same home. The current law, as reflected in cases like Oswell, Greaves, and more recent decisions, is that what matters is the substance of the relationship rather than the form. If the spouses have genuinely terminated their marital relationship – evidenced by their conduct and intent – then they are living separate and apart for divorce purposes, even if economic realities force them to remain under one roof. In short, a couple that cannot afford to live in two households may still qualify for a divorce by showing the court that for at least a year they have lived independent lives and there is no reasonable prospect of them resuming marital cohabitation. This satisfies the Divorce Act’s requirements and allows the divorce to proceed on the ground of separation.