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Free information about Divorce in Ontario

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Free information about Divorce in Ontario

General information follows.

Skip to general information about: 
Divorce in Ontario and Children/Child Custody & Support
Divorce in Ontario and Spousal Support and Property Equalization
Divorce in Ontario and going to court and alternatives

 GENERAL

  1. What rules govern divorce in Ontario?

  2. Who can apply for a divorce in Ontario?

  3. What is the difference between separation and divorce?

  4. What if I try to live with my spouse again after we separated?

  5. What if we were never legally married?

  6. Fault v. No-Fault Divorce

  7. How do I file for divorce in Ontario?

  8. Uncontested divorce in Ontario

  9. Uncontested v. Joint divorce in Ontario

  10. What happens if we can't agree on all of our issues?

  11. What if I have issues that can't wait?

What rules govern divorce in Ontario?

Divorce in Ontario is governed by the Divorce Act of Canada.

To get a divorce in Ontario, you will have to show that your marriage has broken down. The law says marriage breakdown has occurred if:

  • you and your spouse have lived separate and apart for one year with the idea that your marriage is over*; or

  • your spouse has committed adultery (had sexual intercourse with someone else); or

  • your spouse has been physically or mentally cruel to you, making it unbearable to continue living together. Cruelty may include acts of physical violence and those causing severe mental anguish.

*Most divorces in Canada are based on one year of separation. Note that 'living separate and apart' does not necessarily mean living in separate homes - you can be separated but share the same home for various reasons (children, money, etc.). For example, let's say that your spouse moved out of the house three months ago. However, your marriage actually broke down and was essentially over nine months ago. Your actual date of separation may be nine months ago, rather than three months ago.

Who can apply for a divorce in Ontario?

You can apply for a divorce if either or both of you have lived in Ontario for at least one year immediately before applying for a divorce. You do not have to be a Canadian citizen or permanent resident to apply for a divorce in Ontario.

What is the difference between separation and divorce?

Separation occurs when one or both spouses decide to live apart with the intention of ending their marriage. Once you are separated, you may need to deal with your spouse in relation to issues concerning any children you have, such as custody and child support, and you may also need to work out issues dealing with spousal support and property. You can resolve these issues in different ways:

You can negotiate a separation agreement. A separation agreement is a legal document signed by both spouses which details the arrangements you have agreed on. In some jurisdictions, independent legal advice is required to make the document legally binding. This is not a requirement in Ontario.

You can make an application to the court to set up custody, support and property arrangements.

You can come to an informal agreement with your spouse. However, if one party decides not to honour the agreement, you will have no legal protection.

Click here to learn more about legal separation in Ontario.

To legally end your marriage, you need a divorce, which is an order signed by a judge under the federal law called the Divorce Act.

What if I try to live with my spouse again after we separated?

You can live together for up to 90 days for the purposes of reconciliation. If things don't work out, you can continue your action for a divorce as if you had not spent this time together. If you live together for more than 90 days for the purposes of reconciliation and separate again, the second separation will be your new date of separation (the 'year-clock' starts over at that point). Note: Living together in an attempt to rescue the marriage is not the same as living together after 'separation' for economic reasons or for the sake of your children. You can live togther for any reason other than an attempt to reconcile for more than 90 days without having to start counting the one year again.

Click here to learn more about Separation and separation agreements.

What if we were never legally married?

If you are not legally married, divorce does not apply to you. However, you can still negotiate a separation agreement or make an application to the court to set up custody, child support and other arrangements. Common-law spouses have fewer rights upon separation than married couples. For more information on the rights of common-law spouses, contact a lawyer.

Fault v. No-Fault Divorce

Under the Divorce Act, you do not need to prove that your spouse was at fault in order to get a divorce in Ontario. If the reason you are asking for a divorce is breakdown of your marriage, shown by one year of separation, either of you can request a divorce. It does not matter which one of you decided to leave. In fact, the law gives you the choice of applying to the court together to ask for a divorce (a 'joint divorce').

However, if the reason you are asking for a divorce is marriage breakdown because of adultery or mental or physical cruelty, you will have to have proof of what happened.

How do I file for divorce in Ontario?

It is always advisable when filing for divorce to speak to a lawyer knowledgeable about family law. A divorce lawyer can tell you exactly how the law applies to your situation and how to protect your rights. You can then decide what to do.

To start a divorce application, you fill out the appropriate court forms. If you have a lawyer, he or she will fill out the forms for you and will be responsible for processing the divorce.

There are a few things in particular that you have to include in the forms. If there is a child of the marriage, you need to write down the parenting arrangements, including financial support. If these arrangements are in dispute, you will need to describe the arrangements that you are seeking.

Once you have completed all the forms, you file them at the courthouse, pay the required court fees, and follow the applicable court rules and procedures.

Uncontested divorce in Ontario

What happens if my spouse and I agree on all the issues raised by the divorce?

If you and your spouse agree on all issues, you can have an uncontested divorce.

Note that you cannot file an 'uncontested divorce' - the divorce becomes 'uncontested' only after your spouse has been served (given a copy of the filed Application for Divorce) and he or she does not respond by filing an Answer within the required time period. If he or she does not file an Answer, the divorce then becomes 'uncontested'.

Uncontested v. Joint divorce in Ontario

As mentioned above, an 'uncontested divorce' is a regular divorce that your spouse does not contest because he or she agrees with what you are asking for or otherwise does not respond. A 'joint divorce' is where both spouses file for divorce together. With this type of divorce, 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.

Contested divorce in Ontario

What happens if we can't agree on all of our issues?

If you and your spouse cannot agree on one or more terms of the divorce, such as the child's residential schedule, child support, or spousal support, you have a contested divorce. You and your spouse must both submit court documents about the issues you can't agree on. The Ontario court rules specify the steps you must take in order to resolve or clarify the issues before a trial takes place. These steps often take a considerable amount of time.

Once all of the steps have been completed, your divorce proceedings will be set down for trial. During the trial, you will explain your case to the judge. You may also bring witnesses to help you prove your case. The judge will make a final decision about the issues you and your spouse can't agree on. At any time during the divorce proceedings and even after you submit the court documents, you can still try to reach an agreement with your spouse on these issues, and negotiate further with the help of lawyers or work with a mediator.

The last step of the process is for a judge to review all of the information you have submitted, either on your application form or in the trial, to make sure you have met all the legal requirements for a divorce. The judge grants the divorce and sets out his or her decision on any issues that need to be resolved in a divorce order. This order normally becomes final 31 days after the judge signs it. Once the judgment is final, you can apply for a Certificate of Divorce. You must have a Certificate of Divorce to get married again in Ontario or anywhere else in Canada.

What if I have issues that can't wait?

When you apply for a divorce, you may request that a judge deal with certain issues right away.

These issues include short-term parenting arrangements for your child, child support and spousal support. The judge issues an interim or temporary order that stays in place until the judge varies it or makes a final order at trial.

GO TO GENERAL INFORMATION ABOUT:

Divorce in Ontario and Children/Child Support
Divorce in Ontario and Spousal Support and Property Equalization
Divorce in Ontario and going to court and alternatives

If you are ready to file an uncontested divorce in Ontario,
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Last updated on January 1, 2019