Step by Step Guide To File a Sole Divorce in Ontario
In Ontario, it is possible to have different types of processes to obtain a divorce. One possibility is the sole divorce in Ontario, another is a joint divorce, and the third is a contested divorce. The type of process that you take is largely dependent upon your situation and the level of cooperation between you and your spouse. For example, sometimes it is not possible to file a joint divorce because you cannot locate your spouse or your spouse is not cooperating with the divorce.
A contested divorce occurs when one of the spouses files for the divorce, and the other spouse is served and responds to the Divorce Application by filing an Answer (Form 10) to the divorce. The couple, typically through their lawyers, then attempts to negotiate a settlement that is agreed upon by both parties. If they cannot, the divorce proceeds to the court, financial disclosure is exchanged and a case conference is booked.
A joint divorce in Ontario occurs when the couple mutually agrees to the divorce and to the settlement of all issues. This is the most amicable of the divorce processes and involves the couple creating their own divorce settlement, often with the assistance of mediation and legal advice from their family lawyers. In many cases, the couple does not require a Separation Agreement and simply would like to file for a joint divorce. Although drafting a separation agreement is always recommended, it is not mandatory in order to file for divorce.
A sole divorce in Ontario, which is often grouped into the uncontested divorce category with joint divorce, occurs when one party files the necessary divorce Application for the divorce. The other party simply signs the necessary paperwork when served or does not respond.
A sole divorce in Ontario can be considered a simple divorce, or it can be a standard or regular divorce. A simple divorce means that the Applicant is simply filing for divorce, and there are no other issues to address through the court. A General Divorce Application includes all family law matters such as property, financial issues, child custody, spousal support, and other related matters. This is less common, as many people filing for a simple sole divorce in Ontario have been separated for over a year and have already managed other issues through their separation agreement.
It is not uncommon for people to request a simple sole divorce in Ontario only if they plan to remarry or another type of life issue arises. Our Divorce Office Family Lawyer can provide information on the best option to consider, given your specific situation and your future goals or considerations.
Starting the Sole Divorce in Ontario Process
One of the advantages of completing a sole divorce in Ontario is that only one person has to manage the paperwork for the court. The other person is served with the necessary paperwork and either signs and returns the divorce application acknowledgement form, or they simply do nothing (if served in person), and the case progresses through the system. The initial sole divorce in Ontario application can be found online.
Although it is called a “simple divorce,” there can be many complications during the process. For example, if the person being served with the filed Application is not living in Canada, it is a more complicated process. In these situations, a family lawyer often recommends a joint divorce, where both parties sign off on the Application for divorce, eliminating potential challenges or delays in the divorce process.
How Is the Spouse Served in a Sole Divorce Case?
Our Divorce Office Family Lawyer that is managing the divorce, or the service used to file the Application for Divorce, will coordinate serving the other person. It is often done by regular mail, and the spouse simply signs an included form to acknowledge they were served and received the paperwork. They must return the Acknowledgment of Service to the sender, which is used to verify they received the documents.
When the spouse cannot be served by mail, or will not return the form, the spouse is served in person. This is done by a service processor, an individual who personally hands the envelope of documents to the person. The process server then signs an affidavit stating the documents were delivered.
In some cases, the person applying for a sole divorce in Ontario may not know the whereabouts of their spouse. In these types of Cases, our Divorce Office Family Lawyer may recommend to bring a motion to dispense with service in court. Please ask for more details about this process at your free consultation.
The Next Steps in a Sole Divorce in Ontario Case
Once the spouse has been served and there is documented proof of the service, the original spouse filing the Application for Divorce swears an Affidavit for Divorce. This is also developed and prepared by Divorce Office Family Lawyers.
This form states your name and the name of your spouse, as well as all lawyers involved in the divorce process. The individual swearing the Affidavit affirms where they live, their legal name, and that there is no chance of reconciliation of the marriage.
The form also asks for a copy of the registration of the marriage or if it was filed with the divorce application. There are applicable spaces to provide information if the marriage was outside of Canada or if the certificate of marriage is not available.
Additional information on the form confirms there are no other issues to consider, including property division and information on the children of the marriage and a space to provide information on the custody and access arrangements as well as child support arrangements already in place.
The form must be completed in full and must be signed in person in front of a designated person. This list of professionals includes a notary public, lawyer, justice of the peace, or a commissioner for taking affidavits.
The Set-Down
The set-down is a filing that is completed by the divorce lawyer 31 days after the other spouse has been served or has failed to respond to your service. The court receives this filing but has to wait until a clearance certificate comes from Ottawa, which can take up to 6 weeks or more but is typically about a month.
In some cases, and if the grounds for divorce is a separation, the court must wait until one year from the stated date, starting the separation before the set-down can occur. This is another reason to have a separation agreement that is drafted by a lawyer and signed by both parties. It makes it much easier to provide a specific date for the separation and to avoid possible challenges from the other spouse as to the specific start of the separation.
The filing of the set-down triggers another waiting period where a judge assigned the case reviews the documentation and grants the divorce. This will result in the court sending both parties to the divorce a copy of the Final Divorce Order. This process is usually about one to two months, but it can take longer based on the number of cases before the judge and other issues.
The date of the Final Divorce Order starts the last time period before the divorce is finalized. This is a 31-day waiting period. If there is no objection filed by either party, the divorce is completed on that date. In certain cases, this wait period can be waived if both parties to the divorce agree to waive it. This typically happens in situations where one spouse has already made arrangements to get re-married.
Remarrying after a Divorce in Ontario
Should you wish to remarry, you will need to apply to the court for a divorce certificate. This can be done any time after the 31 days following the Final Divorce Order, and it cannot be provided or ordered before this date. This certificate will be required to apply for a marriage license in Canada or elsewhere around the world. As there are a lot of variables in the process, even a simple sole divorce in Ontario timeline can be difficult to pinpoint as to the Date of Order. Lawyers typically tell clients planning on remarrying immediately after the divorce to start applying for the divorce early or to wait until the documentation has been processed through the court before planning their marriage date and event.