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Ontario Divorce Application

How to navigate the divorce process...

Where do I Start?

 For divorces in Ontario, there are several different considerations and requirements needed for divorce.

First, are you or your spouse a resident of Ontario?

In order to make an application in an Ontario Court, you must be sufficiently linked to the province. Either you or your spouse must have lived in Ontario for at least one year before you file a divorce application. As long as one person in the marriage meets this residency requirement, either party in the marriage can make an application to an Ontario Court.

This means you can apply for a divorce in Ontario even if:

  • You were married in a different country before moving to Ontario; and/or 

  • You or your spouse currently live in a different province/country

Secondly, have you and your spouse been separate and apart for at least 12 months?

For uncontested divorces, you and your spouse must be separated and apart for at least 12 months before applying for divorce. For contested divorces, there is no one-year separation requirement. If the cause of your marriage breakdown is linked to adultery, physical or mental cruelty, you can bypass this one-year requirement and commence the divorce application immediately.

The courts have been clear that a spouse cannot benefit from their own misconduct. If a spouse cheats, the same spouse cannot request a divorce based on adultery. The innocent party making an application based on adultery or physical/mental cruelty must be able to prove their claims.

What does "separate and apart" mean?

 

It does not mean you must be physically living in separate homes. In fact, the courts look at a wide variety of circumstances surrounding your separation. Considerations include:

  • Have you and your spouse demonstrated the intention to separate?

  • Where do you and your spouse normally sleep?

  • What are your daily and social activities like? Do they involve your spouse?

 

In the general sense, living separate and apart can easily be demonstrated by physically in different homes. However, given how expensive real estate is nowadays, this may not always be the most accessible option. As such, it is possible to live in the same house but still be considered living separate and apart. If you are living in the same residence even after agreeing to separate with your spouse, you must be able to demonstrate to the court that you meet this separation requirement through circumstantial evidence.

 

A good way to avoid confusion on your separation date is to have it documented in a Separation Agreement. A Separation Agreement will also document your legal rights upon separation.

What if we give the marriage a second try?

 

Let’s say you decide to separate with your spouse. It has been a few months since you formally separated and you’ve decided to give your relationship another try. One month into the reconciliation and you realize this marriage still isn’t going to work.  When does the 12 months start? Is it the initial date of separation or the date after reconciliation?  

The courts allow a 90-day reconciliation period. This means if you decide to give your marriage another shot, you have 89 days to try to make the relationship work again. If the reconciliation is less than 89 days, then the original date of separation will apply.  If it is 90 days or more, then the later date will be your separation date

What the the divorce procedure?

 

You must be separated for 12 months.

For Uncontested Divorces, it is a fairly straight forward application. You can either complete the application yourself, with your spouse, or hire a lawyer to complete the application for you.

Simple Divorces have 2 filings. Though there are no court appearances required, you or someone on your behalf will need to attend your local courthouse to submit the documents for these filings. The amount of time spent in the courthouse to file the documents is dependent on how busy the courthouse is that day.  If you have children, you must go to the courthouse that is closest to where the child lives.

For the first filing, you will need to complete the following forms and bring them to your local family court:

  • Application

  • Federal Registration for Divorce Proceedings

  • Filing fee for the first filing

 

After completing the first filing, the clerk will assign your matter a file number. Once you have a file number, you may then serve the documents on your spouse. The documents you will need to serve are:

  • Copy of the Application that has been issued (with the file number)

  • An Acknowledgement of Service Card (sometimes)

 

To serve these documents, it must be done in person through a friend, family member, or a process server. This person must be at least 18 years of age. Service can be completed by handing the documents to the other party in person, or by mailing the documents with an Acknowledgement of Service Card.

 

The Card is an acknowledgement form by the recipient (in this case, your spouse). Your spouse will need to sign this Acknowledgement and send it back to you – this is to prove that service was completed.

After the documents are served on your spouse, there is a waiting period. If the other party has any claims against your application, they have 30 days to reply to this Application (if they live in Canada or the USA). If they live outside of Canada or the US, they have 60 days to respond to your Application.

 

The second filing can be done after the documents have been served to the other party and the wait period has passed. You will now need to complete and submit the following documents to your local family court:

  • Affidavit of Service
    (The person who served the documents to the other party must have this signed and sworn before a Court clerk or lawyer)

  • An Affidavit of Divorce
    (You can complete this form, but you must sign and swear this before a Court clerk or lawyer)

  • Draft Divorce Order

  • Your original Marriage Certificate

  • Filing fee for the second filing

  • 2 self-addressed (one with your address, the other with your ex’s mailing address) and stamped envelopes

 

Provided all forms are completed effectively and the court is satisfied that all matters are properly dealt with, all you have to do now is wait. The family court will then send you your Divorce Order by mail to the addresses listed in the self-addressed envelopes that you provided.

We do provide a divorce package with more details, courthouse information, copies of all necessary forms and step-by-step instructions.  If you wish to purchase the package please visit: Divorce Package.

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