Navigating a divorce is undoubtedly a challenging and emotional process. If you are considering divorce in Ontario, it is important to understand the process and what the next steps may look like for you. This blog post will guide you through the key aspects of applying for divorce in Ontario.
Governing Laws
Divorces in Canada are governed by the federal Divorce Act, but spouses seeking a divorce in Ontario must apply to the Ontario Superior Court of Justice or the Family Court Branch in their municipality. Ontario legislation may also apply to certain ancillary issues, such as the division of marital property, or to married couples who separate but do not formally apply for divorce.
Grounds for Divorce
Under the Divorce Act, a spouse seeking a divorce must show a breakdown in their marriage due to one of the following grounds:
- Living separate and apart for at least one year
- Adultery
- Physical or mental cruelty that renders cohabitation intolerable
The most common ground for divorce is living separate and apart for at least one year, also referred to as a “no-fault” divorce. Prior to amendments to the Divorce Act in 1986, spouses were required to show they had lived separate and apart for three years if they wished to obtain a divorce on the grounds of marital breakdown. Before 1968, it was not possible to obtain a “no-fault” divorce.
Jurisdiction
To file for divorce in Ontario, at least one spouse must have been ordinarily resident in the province for at least one year immediately preceding the application. This ensures that Ontario courts have jurisdiction to handle the case.
Considerations on When to Apply for Divorce
Couples should generally agree on the terms of their separation before starting an application for divorce. If there is a matrimonial home to sell, assets to divide, spousal support or child support to calculate, and decisions relating to parenting to make, these should generally be negotiated and agreed upon in a Separation Agreement, or set out in a Court Order, prior to applying for a divorce. It is important to note that before granting a divorce, the court will want to be satisfied that sufficient provisions have been made for parenting time and support of any children of the marriage. Getting a divorce will also impact how long a party has to make a claim for equalization of Net Family Property under the Family Law Act. These factors should be taken into consideration when determining the best time to start an application for divorce.
The Divorce Process
The divorce process in Ontario typically follows these steps:
1. Issuing the Application: Either one spouse files an application for divorce, or the spouses can make a joint application for divorce. Regardless, the moving party or joint moving parties should complete a Form 8A: Application (Divorce) and file this application with the Superior Court of Justice or the Family Court Branch in their municipality. A Form 8A is used when only the divorce and/or costs for the divorce are being sought.
2. Serving the Application: If spouses are filing jointly, they complete the application together and are not required to wait 30 days once the application has been issued. If only one spouse is filing the application, they are required to serve the other spouse with the application via special service. The other spouse then has 30 days to file a response, should they wish to contest.
- Uncontested Divorce: If the other spouse fails to file a response, the divorce can proceed as an uncontested/simple divorce, likely without requiring a court appearance.
- Contested Divorce: If the other spouse does file a response, the divorce will proceed as contested and court appearances may be required to resolve disputed issues.
3. Affidavit for Divorce: If filing jointly, as soon as the court has issued the application, the parties may file their Affidavit for Divorce with the court, a form that sets out why the parties are requesting the divorce. If only one party is applying, the Affidavit for Divorce can be filed only after the 30-day response period for the other spouse has lapsed.
4. Court Processing and Deliberation: Once the court has the Affidavit for Divorce, along with other necessary documentation, such as the Marriage Certificate and Affidavits of Service, if relevant, the court will decide whether to grant a Divorce Order.
Uncontested Divorce
When a party fails to file a response, the court assumes they do not contest the divorce. Generally, if the separating spouses agree on all material issues, one spouse will file a divorce application and the other will not file a response.
The requisite forms for a simple divorce and the link to apply online to the Superior Court of Justice are available online through the Government of Ontario.
As of the date of writing, the court fees associated with a simple divorce include an application fee of $224 and a fee of $445 to have the application heard, totaling $669. This price does not include any legal fees.
Contested Divorce
When separating parties disagree on key issues and the responding spouse files a response with the court, the divorce is considered contested. Key issues to be settled by a divorce order include child custody and access (now called decision-making responsibility and parenting time), child support, spousal support, and/or the division of property.
In addition to their emotional strain, contested divorces are complex and often involve lengthy legal proceedings. At every step of the way, settlement is encouraged to save the parties time and money. If the parties are unable to settle, the contested divorce will end in a trial where a judge will make a ruling on all issues in dispute and grant the divorce.
When is the Divorce Finalized?
A divorce is finalized and takes effect 31 days after a judge signs the divorce order.
Conclusion
Divorce is rarely a straightforward process, and each case can have unique circumstances. Understanding the process can allow you to approach this challenging time with more confidence and clarity. A family law lawyer can help guide you through this process, prepare or review court forms, organize service of the application, file materials on your behalf, and keep you updated throughout the process.
This blog post was written by Colton Allen, Articling Student, and Meghan Boyer, a member of the Family Law team. Meghan can be reached at 613-566-2055 or at meghan.boyer@mannlawyers.com.
