Step-by-Step Process for Filing an Uncontested Divorce in Ontario

Posted on by Clare Louise

Initial Preparation

Confirming Eligibility

To file for an uncontested divorce in Ontario, you must first ensure that you meet specific eligibility criteria:

  1. Residency requirements in Ontario:At least one spouse must have lived in Ontario for a minimum of 12 months before filing the divorce application. This requirement ensures that the Ontario court has jurisdiction over your divorce.
  2. Grounds for divorce in Ontario:The sole ground for divorce under Canadian law is the breakdown of the marriage. This is established in one of three ways:
    • Living apart for at least one year prior to the determination of the divorce application and continuing to live apart during the application process.
    • Adultery by the other spouse (not typically used in uncontested divorces).
    • Physical or mental cruelty (rare in uncontested cases).

Gathering Necessary Documents

Accurate and comprehensive documentation is crucial for a smooth uncontested divorce process:

  1. Marriage certificate:This serves as proof of your marriage and is required to file for divorce. If you were married outside of Canada, additional steps might be necessary to validate the foreign marriage in Ontario.
  2. Separation agreement:A critical document in uncontested divorces, the separation agreement outlines how both parties agree to resolve issues such as property division, spousal support, and if applicable, child custody and support. Having a separation agreement finalized and signed by both parties can expedite the divorce process.
  3. Financial statements and other relevant documents:These include disclosures of assets, liabilities, income, and expenses from both spouses. Accurate financial statements ensure fair and transparent negotiations in the separation agreement.

Seeking Legal Advice

Even in an uncontested divorce, consulting with a Toronto divorce lawyer offers several advantages:

  1. Importance of consulting with a lawyer:A divorce lawyer can help ensure that all legal forms are correctly filled out and filed, and that you are fully aware of your legal rights and obligations. They can also foresee potential issues and help address them proactively.
  2. Benefits of legal advice even in uncontested cases:Even if both parties agree on the terms, legal advice is invaluable. A lawyer can review your separation agreement to ensure it is fair and complies with Ontario law. They also provide crucial guidance on any legal nuances that may arise, ensuring the agreement is enforceable and serves both parties’ interests.

Completing the Necessary Forms

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Application for Divorce (Form 8A)

  1. Where to find the form:The Application for Divorce (Form 8A) can be obtained from the Ontario Court Services website or picked up at any local courthouse in Ontario. This form is designed to be accessible and easy to understand, making it straightforward for individuals to begin the divorce process.
  2. Detailed instructions for completing the form:
    • Identify the type of divorce:Specify whether it is a joint or simple divorce.
    • Complete personal details:Fill out all required personal information for both spouses, including full names, addresses, and dates of birth.
    • Marriage details:Provide the date and place of your marriage.
    • Grounds for divorce:Indicate that you have lived apart for at least one year, which is the standard ground for an uncontested divorce.
    • Details about children and support (if applicable):If you have children, outline arrangements regarding custody, access, and support that have been agreed upon.
    • Review and sign:Ensure all information is accurate before signing the form.

Affidavit for Divorce (Form 36)

  1. Purpose and importance of the affidavit:The Affidavit for Divorce verifies the accuracy of the information provided in your Application for Divorce. It is a sworn statement that must be filled out truthfully to affirm that the grounds for divorce and all other details in the application are correct.
  2. Step-by-step guide to filling it out:
    • Fill in personal details:Similar to the application, include your full legal name and the name of your spouse.
    • Confirm separation details:Clearly state the date you began living apart and affirm that you have not resumed living together for more than a brief reconciliation period.
    • Swear or affirm the affidavit:This document must be sworn or affirmed in front of a commissioner for taking affidavits, who can often be found at the courthouse.

Other Required Forms

  1. Registration of Divorce Proceedings (Form 36B):This form is filed after the Application for Divorce to register the divorce proceedings officially with the court. It helps in tracking the progress of your case and is necessary for the divorce to be processed by the court.
  2. Additional forms that may be necessary depending on circumstances:
    • Form 35.1: Affidavit in Support of a Claim for Custody or Access:Required if you have children and are making claims for custody or access.
    • Financial Statement (Form 13 or 13.1):Needed if you are requesting child or spousal support, or if the divorce involves complex property issues.

Filing the Application

Where to File

  1. Identifying the appropriate courthouse:The divorce application must be filed at the Superior Court of Justice or Family Court branch of the Superior Court of Justice in Ontario. The correct courthouse is typically the one in the municipality where you or your spouse have lived for at least the last year. In Toronto, the specific courthouse location will depend on your address, which you can verify through the Ontario Court Finder tool available online.
  2. Online filing options if available:Ontario offers an online filing service known as the Ontario Court Services Online Portal, where you can submit the Application for Divorce electronically. This convenient option allows you to file from anywhere, reducing the need for in-person visits to the courthouse.

Submitting the Application

  1. Instructions for submitting forms in person or online:
    • In-person:If filing in person, bring all required forms to the courthouse. Ensure that all documents are signed and completed without any missing pages. Court staff can assist with any procedural questions.
    • Online:When filing online, scan and upload all required documents to the Ontario Court Services Online Portal. Double-check that all scans are clear and that all information is legible.
  2. Paying the required filing fees:
    • The filing fee for a divorce application in Ontario is generally required at the time of submission. The exact fees can be verified on the Ontario Court Services website or directly through the courthouse. Payments can typically be made by credit card online or by various payment methods in person.

Serving the Documents

  1. Methods of serving divorce papers to the other spouse:
    • Personal Service:The most common method where a third party (not you) personally delivers the documents to your spouse.
    • Service by Mail or Courier:This method can be used with an acknowledgment form that your spouse must sign and return.
    • Alternative Service:If the above methods are impractical, a court may allow service by email, posting on the property, or publication in a newspaper.
  2. Proof of service requirements:
    • Once the documents are served, the server must complete an Affidavit of Service (Form 6B) that confirms the date, time, and manner in which the documents were served. This affidavit must be sworn or affirmed and then filed with the court to prove that your spouse has received the necessary documents.

Responding to the Application

No Response from Spouse

  1. Procedures if the spouse does not respond:
    • If your spouse does not file an answer within 30 days of being served (or 60 days if served outside Canada or the United States), you can proceed with the divorce as uncontested. It’s crucial to ensure that the documents were served correctly and that proof of service is filed with the court.
  2. Moving forward with the divorce without a response:
    • You may file a motion for default judgment, where the court can grant the divorce based on the evidence and documents you have submitted without your spouse’s input. This includes verifying the separation agreement and ensuring all necessary forms and financial statements are in order.
    • To facilitate this, complete and file a Request to Clerk (Form 14B) along with an Affidavit for Divorce, indicating that the spouse has not responded and you are requesting the divorce to be granted.

Agreement and Consent

  1. Process if the spouse agrees and consents to the divorce:
    • If the spouse agrees to the divorce, they can demonstrate their agreement by signing Consent to Joint Divorce, which should be filed along with the original application if it is a joint application or as soon as possible after agreeing in the case of a sole application.
  2. Completing and filing the necessary consent forms:
    • The agreeing spouse needs to complete and sign a Consent Motion to Divorce (Form 25A). This form indicates that the spouse consents to the divorce order being made and agrees with all matters submitted in the application, including those concerning property division, spousal support, and child custody.
    • Along with this form, both spouses should submit updated financial statements if there have been significant changes since the initial filing. This ensures that all decisions regarding finances are based on the most current information.

Waiting Period and Court Review

Mandatory Waiting Period

  1. Understanding the mandatory waiting period in Ontario:
    • In Ontario, there is a mandatory waiting period, often referred to as the “cooling-off period,” that starts from the date the divorce is filed with the court. This period is intended to give both parties time to reconsider their decision and ensure that divorce is indeed their final resolution.
  2. Timeframes and what to expect during this period:
    • The standard waiting period is at least 31 days after the divorce order has been granted by the court. This allows time for any appeals to be made if one of the parties changes their mind. During this period, it is essential to stay informed about the status of your filing and be prepared for the divorce to become final if no appeals are made.

Court Review of Documents

  1. The court’s role in reviewing the submitted documents:
    • Once all documents are submitted, the court thoroughly reviews them to ensure that all legal criteria are met and that the agreement is fair to both parties, especially concerning any agreements on financial matters and child custody. The review also ensures that all forms are properly completed without any inconsistencies.
  2. Potential outcomes and requests for additional information:
    • Approval and Divorce Order Issued:If the court is satisfied with the review, it will issue a Divorce Order, and following the waiting period, the divorce will be finalized.
    • Request for Additional Information:If the court finds discrepancies or needs more details to make a fair judgment, it may request additional information. This could include more detailed financial disclosures or clarification of the terms in the separation agreement.
    • Hearing Required:In rare cases, the court might require a brief hearing to resolve any outstanding issues. This typically happens if the judge has specific questions or concerns that need addressing before finalizing the divorce.

Finalizing the Divorce

Divorce Order (Form 25A)

  1. Process for obtaining the Divorce Order:
    • Once the court has reviewed and approved your divorce application and all supporting documents, and assuming no issues are outstanding, the court will issue a Divorce Order using Form 25A. This form is the official court order that legally ends your marriage under Canadian law.
    • Your lawyer or you will typically receive a notification from the court once the Divorce Order is ready. If you have a lawyer, they will handle the retrieval and review of this order to ensure everything is correct.
  2. Timeframes for issuance and delivery of the order:
    • The issuance of the Divorce Order usually occurs shortly after the court completes its review, provided there are no complications such as requests for additional information or a required court hearing.
    • The delivery of the Divorce Order typically follows its issuance by a few days to a week, depending on the court’s schedule and the method of delivery (e.g., mail or electronic delivery). After the order is issued, there is a mandatory 31-day waiting period before the divorce becomes final, to allow time for any possible appeals.

Certificate of Divorce (Form 36B)

  1. How to obtain the Certificate of Divorce:
    • After the 31-day waiting period following the issuance of the Divorce Order, you or your lawyer can apply for the Certificate of Divorce, which is done using Form 36B. This certificate is the official document that confirms the legal dissolution of your marriage and is necessary for any legal matters that require proof of divorce, such as remarrying.
    • To obtain the certificate, submit a completed Form 36B to the courthouse where your divorce was processed. This can typically be done in person or, in some jurisdictions, through online systems.
  2. Importance and uses of the certificate:
    • The Certificate of Divorce serves as the final legal document in your divorce proceedings. It’s essential for legally changing your marital status and is required if you plan to remarry.
    • The certificate is also used in various legal and personal documentation processes where proof of your divorce status is required, such as changing your name or updating your marital status on official documents.

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