Ontario divorce details
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Uncontested VS Contested Divorce in Ontario
In Ontario and throughout Canada, the majority of divorce cases are uncontested.
For example, every divorce case may include a number of certain events (hearings, interviews, conferences, judgments, and others). Compared to an uncontested divorce, a contested case includes more than twice as many such events. Also, only about 10% of uncontested cases demand some pre-trial hearings, while they are usually ordered by the court in half of contested cases. Of course, these facts make a contested divorce more stressful, time-consuming, and complicated, so you should consider.
Uncontested Divorce in Ontario
An uncontested divorce may seem very easy, but it still has some significant requirements. To obtain an uncontested divorce you must be sure that your spouse is ready to cooperate with you, and that a civilized, calm and constructive dialogue is possible between you both.
In an uncontested divorce case, you can file either a sole or joint divorce application. So both you and your spouse should be active and take the initiative to work on your separation agreement, especially if you decide to manage it without an attorney.
Grounds for Divorce in Ontario
If at least one of the spouses wants to get a divorce and can prove the marriage is irreparable, the proceeding can start. Such a desire is the main cause to be separated.
Ontario does not recognize some special Fault and No-fault grounds for divorce. Generally, all divorces in Canada may be defined as no-fault.
There are 3 grounds for divorce in Ontario:
- The spouses have been living separately for 1 year and more.
This is the most common ground to get a divorce due to some conflict of interest or irretrievable breakdown. Also, this year is usually used for making a successful and detailed Separation Agreement.
- Cruelty (physical or mental).
If you file for a divorce based on adultery or cruelty, you have to submit evidence of it. The second difference between these grounds and the ground based on separation is that you don’t need to wait a year. You can apply for divorce as soon as you decide to get it. And it takes only 31 days for the divorce order to be entered into force.
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Ontario Residency Requirements to File for Divorce
To file for divorce in Ontario, you or your spouse must be a current resident of the province for at least a year, before the time you apply for divorce.
Though you must live apart to file for divorce based on 1-year separation, you still may share the same residence (maybe, for some financial reasons), and be considered as living separately. Also, you can file for divorce before the “1-year waiting period” passes, but the divorce will be granted once that period is up.
How to File for an Uncontested Divorce in Ontario
Your particular divorce case can include some more or less complicated aspects, but the main steps to obtain an uncontested divorce in Ontario are the same for every couple who apply for the divorce based on a 1-year separation. Let’s sort it out.
- Start your “separation” period.
- Get a divorce application (in the local court or online).
- Decide whether your uncontested divorce is going to be joint or sole. Both of them demand cooperation with your spouse, but in the case of joint application, you are not required to serve your spouse with the paperwork (and then wait for the answer for 30 days). As a result, all the process can take less time.
- Make the separation agreement. Consider all the issues of your post-divorce life such as how to divide the real estate, assets, and other property, or how to allocate parental responsibilities. Negotiate and compromise, and try to find the most appropriate conditions for the both of you.
- File the divorce application in the family courthouse of either yours or your spouse's residence. Pay the filing fee.
- Serve your spouse with the divorce documents and wait for the response (if you have a Sole uncontested divorce). Your spouse has 30 days to answer.
- When you submit all the necessary paperwork to the court, you should wait for the court decision. Typically, it takes between 6 and 8 week for them to review the file. Afterwards, the judge can grant your divorce.
- 30 days after, you can get your Certificate of Divorce. The divorce is finalized.
Do-It-Yourself Divorce in Ontario
If you file for an uncontested divorce based on 1-year separation, your case is considered to be quite easy. So you can try to arrange it by yourself by completing all the steps without the help of an attorney.
Generally, the main condition of a successful DIY divorce is an amicable relationship between you and your spouse. Your intention to get a divorce must be mutual. Both of you must be honest and ready to discuss your opinion directly and clear.
If there are any difficulties with the property division or children-related issues, you should try mediation or at least use an online-support services such as ours. Sometimes, help is needed even if there is just one incomprehensible detail.
How Much Does an Uncontested Divorce Cost?
The initial cost of an uncontested divorce in Ontario starts from $447 with the court fees. Ideally, this price can be achievable only in case of a simplified uncontested and joint DIY divorce.
But it often happens that there some additional expenses. An average uncontested case in Ontario is about $1,500, and it varies from $1,000 and $2,700. Fees of attorneys and mediators are included in these amounts.
How Long Does It Take to Get Divorced in Ontario?
The time your uncontested divorce takes depends on whether you decided to file for sole or for joint divorce. If you have to serve your spouse with the paperwork, add 30 days to the divorce timeline (and the time period for filing a response may be 60 days if your spouse is abroad).
An average uncontested divorce case takes about 4 months from the application is filed to the issue of the Certificate of Divorce.
How to Serve Your Spouse in Ontario
Ontario family law provides a variety of methods which can help you serve your spouse with the documents, in case you have chosen a Sole uncontested divorce.
Though you are not allowed to hand the paperwork directly to your spouse, there are some other convenient ways to do it:
You can send them through the mail or just email your spouse or their attorney;
You can use the help of courier service;
You can use a Document exchange. It is a digital platform that allows you to upload documents so that a lawyer (or your spouse directly, if they are a member of Document exchange) could download it and acknowledge the receipt.
After your partner is served with the paperwork, they have 30 days to give an answer.
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Documents You Need to Get a Divorce in Ontario
Let’s observe the basic document kit you need to arrange your easy joint divorce:
- Form 8A: Application (Divorce).
Both you and your spouse must fill out and sign this form. It states your mutual and confident intention to terminate the marriage.
- Form 36: Affidavit for Divorce.
This form should include information regarding you and your spouse, along with post-divorce plans. It is completed and signed by both spouses. Also, the Affidavit must be affirmed to be true in front of a qualified commissioner.
- Form 25A: Divorce Order.
You should write down some orders you want the court to make.
- Form 35.1: Affidavit in Support of Claim for Custody or Access.
You must fill out this form if you have children and ask for a child custody or visitation rights. The form must also be sworn or affirmed.
And if you require child or spousal support, you should also complete: Form 13: Financial Statement (Support Claims); Support Deduction Order; and Support Deduction Order Information Form.
Online Divorce in Ontario
Nowadays, the Ontario Government provides an opportunity to file the Application for divorce online in locations such as Brampton, Hamilton, Ottawa, and Toronto. So, in these cities, you are not required to go to the courthouse to start your divorce proceeding.
However, if your city is not on this list, you can still download the necessary forms with our service. If you seek an uncontested divorce but have some difficulties with your paperwork, we can help to customize and prepare the documents according to local laws and your individual case. As a result, it will be easier for you to complete the paperwork quickly and accurately.
Rules for Child Support and Visitation in Ontario
In Ontario divorce, child support is ruled by the Federal Child Support Guidelines (federal Divorce Act), and if parents decide to separate, not divorce, the support issues are governed by Ontario’s Family Law Act.
The Federal Child Support Guidelines define child support taking into consideration the parents’ gross income and the number of children. The guidelines table calculates the basic amount of support which should be paid. All other expenses such as education, healthcare, daycare costs, and any others are divided between both parents.
Speaking about custody & visitation, there are 3 ways to sort out parental rights after the divorce. Making your Separation Agreement or negotiating this in court, you can choose the option that is the most appropriate for your case.
- Joint custody
This means that both parents are custodial parents. Such a situation demands both spouses to be polite and ready to cooperate. There are two types of joint custody - Legal and Physical. Joint legal custody implies equal decision making power for both parents in making important decisions of the upbringing process. Joint physical custody means that each parent should spend 40% of their time with the child.
- Sole custody
This implies one custodian and one non-custodial parent. The child lives with the parent who has full custody, and the other parent can use their visitation rights if any were granted by the court.
- Split custody
Split custody can be ordered when there is more than one child in the family. Each parent can have custody of a different child. Usually, split custody can be a good idea when there are teens who have their own preferences in terms of who they’d rather live with.
Rules for Spousal Support in Ontario
Spousal support is not automatic in Ontario divorce, but you can request it if there are reasons to order it. Spousal support is paid by the spouse with a higher income to the more dependent spouse, who cannot support themselves right after the divorce.
Spousal support is aimed to help the spouse become self-sufficient (these payments can be spent on education or in upgrading some professional skills).
Canada law expects that both spouses want to have a good job and earn money for themselves, so the rules of spousal support should just help to overcome some temporary financial hardship.
Division of Property in Ontario
The Family Law Act (FLA) provides for the equal division of property in Ontario, but it still doesn’t mean that it must be split 50/50. Only “net family property” (property acquired during the marriage and property in your joint name) is divided.
The main concept of Ontario division of property is so-called “equalization”. It is a payment made from one spouse to the other with the purpose of equalizing their financial condition. You and your spouse must first calculate the value of your assets acquired between the date of marriage and separation date. This is your net family property. Then, whoever has the higher net family property makes payment to the other spouse to equalize the amounts. However, there are some exceptions, and every certain divorce case should be considered separately.
Division of Debt in Ontario
Debts are considered to be part of property. So if the debt is registered in your name, it remains your problem. And vice versa, you are not required to pay for spouse’s debt if you didn’t sign for it.
Nevertheless, as part of "net family property", debts are taken into account during the equalization calculation. As a result, it is important to distinguish between joint and personal debt, and be able to value them.
Divorce Mediation in Ontario
Divorce mediation is a process that can help the couple to negotiate, compromise and make a mutually beneficial separation agreement. During the mediation session, spouses try to resolve their misunderstanding on some important divorce issues, working with the neutral third party (the mediator). Mediators cannot give legal advice or take the side of one of the spouses, but they prepare your separation agreement and guide you through the divorce process.
Mediation is not mandatory in Ontario but you should both agree to take part in it, especially when dealing with an uncontested divorce as it can be quite relevant.
is quick and easy
How to Divorce a Missing Spouse in Ontario
If all your attempts to serve your spouse with the divorce paperwork fail because you cannot locate where they are, you can still get a divorce in Ontario. However, such a case demands more time and requires more effort.
You must convince the court that you did your best to find your missing by providing some evidence of your diligent search.
If the judge is satisfied with the information you provide, you may be allowed to proceed without your spouse. And in some cases, you should file for service by publication where you publish a notice of the divorce in the local newspaper. If your spouse remains silent for a given time period, the divorce will be granted by default. Only your terms and requests of the divorce will be fulfilled by the court.
Default Divorce in Ontario
"Default divorce" is when the divorce is completed without the participant of your spouse. The case mentioned above when you are unable to locate your spouse is an example of a default dIvorce. It also happens when your spouse just ignores the divorce application.
If there is no answer within 30 days since you served your spouse with the divorce documents, you can continue the proceeding by yourself. You should submit the Affidavit for Divorce, Divorce Order, and Clerk’s Certificate to the court. Afterwards, the court needs some time to review your paperwork and issue you a Divorce Order.
Annulment of the Marriage in Ontario
You can file for an annulment of marriage only if your union was invalid and illegal from the start. On such grounds for annulment, the judge declares the marriage null, so there is no need to resolve all the issues as in a divorce.
Below are the grounds for annulment in Ontario:
- underage marriage (without parents’ consent)
- fraud or under duress marriage (one of the spouses consented by force or deception);
- intoxicated marriage (under the influence of alcohol or drugs);
- failure to consummate the marriage (due to a physical inability that the other spouse was unaware of prior to the marriage);
- the spouse has no mental capacity to understand what a marriage is;
- one spouse was unaware that the ceremony was, in fact, a wedding.
Legal Separation in Ontario
There is no concept such as legal separation in Ontario and, in general, Canada. In fact, if spouses live separate and apart, they are already considered to be separated. And regardless of how long they remain separated, the divorce isn’t granted automatically.
Nevertheless, the term “legal separation” is often used to define the contract, which is concluded by the spouses at the time of separation.
Same-Sex Divorce in Ontario
In Ontario, the first important step for the legalization of same-sex marriages was taken in 2003, when the Court of Appeal replaced the old definition of marriage ("the union of one man and one woman”) with a new one that claims marriage as "the voluntary union for the life of two persons to the exclusion of all others".
In 2005, the Civil Marriages Act was enacted and same-gender marriages were legalized nationwide.
Same-sex couples who want to get a divorce in Canada should meet the same requirements as straight couples. Even if they married in Canada and left, at least one spouse should be a resident of Canada for one year before filing for a Canadian divorce.
Military Divorce in Ontario
When a military member wants to get a divorce, they can file in different areas:
- Place of the filing spouse’s residence;
- Place of the defendant’ residence;
- Place where the military spouse is stationed.
Please note that the area affects many details of the divorce proceeding, as the process is governed by the local laws of the particular province.
Another rather frequent area of concern is the division of military pension. It is important to know that it is not equally divided automatically with the rest of marital property. However, Canadian Armed Forces pension can be ordered to be divided by the court in some particular cases. Furthermore, you can also voluntarily include this point in your separation agreement.
How to Divorce a Spouse in Jail in Ontario
Even if your spouse is incarcerated, you should serve them with the divorce paperwork. You can use a private process server or ask someone over the age of 18 to deliver them to your spouse, but you are not allowed to do it yourself. Your spouse can sign the summons and the divorce application, and if the divorce is uncontested, they don’t have to file any materials in the divorce proceeding. After 30 days, your divorce can be granted by the court. The Affidavit provides testimony to the judge and acts as your evidence for the court.
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Ontario Divorce Filing Fee
Court filing fees are in addition to the cost of using DivorceFiller.com. This cost may vary by county. Please check with your local courthouse to determine the exact amount.
Can a Filing Fee Be Waived?
The filing fee can be waived except for $10, unless your income is really low (and you are able to prove this to court) or if you meet certain financial eligibility criteria, which implies that your main source of income is from:
- Ontario Works;
- The Ontario Disability Support Program;
- Family Benefits Act allowance;
- Old Age Security Pension with the Guaranteed Income Supplement;
- War Veterans Allowance;
- Canada Pension Plan benefits.
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