This article explains divorce procedure. If you are looking for information about your legal rights and obligations after relationship breakdown, please click on any of the links below, or select the appropriate topic from our “Services” menu.
In Ontario, the simplest way to get a divorce is “Uncontested.” This is generally done by agreement between the parties, and refers to a procedure where one party files the Divorce Application with the court and serves it on the other party.
Whether or not the divorce proceeds uncontested, the procedural steps remain the same, and in most contested cases, the timing of those steps is the only thing affected.
In an uncontested situation, the receiving party allows a 30 day filing deadline to expire without answering the divorce Application.
In contested cases (such as those with legal issues that must go before the court), the receiving party may file an Answer within the 30 days, and the matter then proceeds through a court process that involves other procedural steps required to resolve additional issues.
Either way, the person who applied for the divorce eventually files an Affidavit setting out the grounds for divorce – most often that the parties have spent at least one year living separate and apart – along with draft divorce orders. In an uncontested situation, this is done after the 30 day period from when the Divorce Application was served. Otherwise, it is done when the issue of divorce is ready to proceed in light of the other issues involved in a case.
A judge then reviews the Affidavit, and if satisfied with the evidence, signs the divorce order.
The court then mails copies of the Divorce Order to the parties. After a 30 day appeal period has passed, either of the parties can then obtain a “Certificate of Divorce” which provides official final proof of the divorce.
Divorce is available in Ontario where at least one of the parties has been ordinarily resident in the province for at least a year, regardless of where the parties married.
Most divorces are ordered based on the parties living separate and apart for at least one year. That said, other grounds for divorce include adultery and/or mental cruelty, either of which entitles the applicant to immediate divorce without waiting a year after separation. These latter two grounds are seldom raised and tend not to be used when parties agree to proceed in an “uncontested” manner.
Before applying for divorce, some parties manage to negotiate a Separation Agreement setting out their rights and obligations. This facilitates the divorce process, because if there are no outstanding legal issues to be determined, the divorce can proceed as an “uncontested” with no court appearances necessary.
Divorce triggers a limitation period to make claims for rights arising from the marriage. Issues involving property division or spousal support should be addressed prior to filing a divorce application, and if they are not resolved, they should be included in the application so that a judge can make appropriate orders.
A divorce will not issue unless the judge is satisfied that there are adequate arrangements in place for the support of any children from the relationship.
Parties often manage to cooperate in obtaining a divorce, and with the benefit of accurate legal advice, many are able to resolve their other issues prior to applying for divorce (often during the one year of separation that the court regularly relies on to issue the divorce order).
If you require more information about divorce, please visit one of the links on this page, or contact us for further details.