How to file a Divorce in Ontario: Requirements and Steps Involved
Filing For a Divorce in Ontario?
Learn the divorce process and requirements below!
Divorce in Ontario is governed by the federal Divorce Act. In order to file for divorce in Ontario, you will need to show that your marriage has broken down. There are three ways you can do this:
1. You and your spouse have lived separate and apart for one year (separation grounds)
2. Your spouse has committed adultery; or
3. Your spouse has been cruel to you (physically or mentally) such that you could not continue to live together
Note: Majority of the divorce cases in Ontario are processed based on separation for one year. However, living “separate and apart” does not necessarily mean that you and your spouse have lived in separate residences. You can be living in the same residence (due to economic or other reasons) but still be considered living separate and apart.
To view a one-minute video on the process of divorce in ontario, click here.
The first step is to decide that you will actually separate from your spouse and file for divorce. Once you separate, your living “separate and apart” time requirement starts.
Obtain a divorce application. You can do this in a number of ways. You can log on to the Ontario court forms website and download/print the application or visit your local family court information center and look for assistance.
Decide under which ground you will be filing for divorce. Remember, most divorce applications are filed under the one-year separation period. The other grounds for divorce are adultery or cruelty. A divorce application based on adultery or cruelty requires evidence to substantiate the claims.
Figure out if your spouse will contest your divorce or whether it will proceed as uncontested. If you and your spouse cannot agree on the terms of the divorce, you will likely need to retain an experienced attorney practicing in family law. If your case will remain uncontested (majority of cases), there are two types of applications:
Uncontested Sole Divorce: When both spouses are in agreement about the divorce and do not oppose the divorce, either the husband or wife files the divorce papers with the court asking for the divorce. Once the papers are filed with the court, your spouse is served with the divorce papers. Your spouse then has 30 days to contest or challenge the divorce, or make a claim such as for support, property, custody, etc. If your spouse does not challenge the divorce within the required period, the divorce will proceed as “uncontested” and will be finalized by the court.
Uncontested Joint Divorce: The second way to proceed is to file a joint divorce. In this type of filing, both husband and wife sign and swear the divorce papers. Neither spouse is suing the other for divorce – you are telling the court that you both want the divorce. In a joint divorce application, spouses can also jointly ask the court to include an order relating to custody, access, support if both spouses agree to the terms.
Decide whether you and your spouse will draft a separation agreement. A separation agreement is not required in order to file for a divorce in Ontario, however it may be a good idea:
A Separation Agreement is basically like a contract that is signed by both you and your spouse in order to resolve issues related to spousal support, custody, property, etc. Once the separation agreement is signed, the court treats it as if it was a court order. This means that it is a legally binding agreement, and the court can enforce the agreement if one of the parties to the agreement fails to meet his or her obligations under the agreement. Drafting a separation agreement is an attractive and affordable way to work out certain issues instead of spending significant time and money in court proceedings. By agreeing to settle the issues in a legally binding agreement, you can be at peace of mind knowing that all the issues have been dealt with and your spouse cannot change or make claims against you.
For more information about some of the issues that are usually settled with a separation agreement, click here.
File your Ontario divorce application. You will file your application at the family courthouse that is associated with your address, or the address for your spouse. For example, if you are living in Toronto and your spouse is living in Mississauga, you can file your Ontario divorce application at either the Toronto or the Brampton courthouse. Here is a link to court locations and addresses in Ontario.
Court filing fee: The court fee for filing a divorce in Ontario is currently $447. This is paid at the time of filing. You will pay $167 when you file your initial divorce application, and the remaining $280 when you file the final documents.
The waiting game. It usually takes about six week for something called a “clearance certificate” to be issued from the Ottawa registry directly to the court where you filed. You will have to wait for this certificate before proceeding with the filing of final documents.
Also during this time, if you have filed for a sole divorce, you will file the divorce application on your spouse. If you filed for a joint divorce, you don’t need to serve any documents since both you and your spouse are named in the application.
If you filed for a sole divorce and served your spouse with the divorce application, you must wait at least 30 days before filing your final documents. After 30 days are up, if there is no answer filed by your spouse, you can then set down your divorce with the court by submitting your Affidavit for Divorce, Divorce Order and Clerk’s Certificate.
Once you submit the final documents to the courthouse, you will wait for the decision on your file. A Judge will either grant your divorce or reject your application due to some error made. The decision usually takes about 6 to 8 weeks from the time you file your final documents. A copy of the divorce order will arrive directly to your mailing address.
You can obtain your Certificate of Divorce 30 days after the Divorce Order is granted. Only then will you be legally divorced and entitled to remarry.
Note: To view a one-minute video on the process of divorce in ontario, click here.