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. If compare an average contested and uncontested cases, it will be clear why it’s so.
For example, every divorce case may include a number of certain events (hearings, interviews, conferences, judgments etc). A contested divorce includes, in comparison to an uncontested, more than twice as many events per each case. Also, only about 10% of uncontested cases demand some pre-trial hearings, while they usually are ordered by the court in half of the contested cases. Of course, these facts make a contested divorce more stressful, time-consuming, and complicated, so you should consider it if you want to save your time.
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 civilized, calm and constructive dialogue is possible between you both.
In uncontested divorce case, you can file either sole or joint divorce application. So both you and your spouse should be active and take the initiative working on your Separation Agreement, especially if you decided 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 unrepairable 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 we essentially have 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 (whatever physical or mental).
If you file for a divorce based on adultery or cruelty, you have to submit any 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 decided to get it. And it takes only 31 days to divorce order be entered into force.
Ontario Residency Requirements to File for Divorce
To file for divorce in Ontario and under Ontario laws & rules, 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” passed, but the divorce will be granted once that period is up.
How to File for an Uncontested Divorce in Ontario?
Surely, your particular divorce case can include some more or less complicated aspects, but the main 8 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 “separate & apart” period.
- Get a divorce application (in the local court or online).
- Decide whether you uncontested divorce is going to be joint or sole. Both these types demand the cooperation with your spouse, but in the case of joint application you have not to serve your spouse with the paperwork (and then to wait for the answer for 30 days), and, as a result, all the process can take less time.
- Make the Separation Agreement. Consider all the issues of your post-divorce life, for example, how to divide the real estate, assets and other property, or how to allocate parental responsibilities. Calculate the equalization, so that you can learn how your marital property must be divided. Negotiate and compromise, try to find the most appropriate conditions for both of you.
- File the Divorce Application in the family courthouse. Choose it according to 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 chosen a Sole uncontested divorce). Your spouse has 30 days to answer.
- When you submitted all the necessary paperwork to the court, you should wait for the court decision. Typically, it takes between 6 and 8 week to review the file. Then, 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, taking 8 steps that are described in a previous block.
Generally, the main condition of a successful DIY divorce is an amicable relationship between spouses. Your intention to get a divorce must be mutual. Both of you must be honest and ready to express and discuss your opinion directly and clear.
If there are some difficulties with the property division or children-related issues, you should try a mediation or at least use an online-support, which is provided by such online-divorce companies as this one. Sometimes, the 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 of the court fees. Ideally, it can be possible in case of 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 $1000 and $2,700. Fees of attorneys and mediators seem to be included in these amounts.
How Long Does It Take to Get Divorced in Ontario?
How long will your uncontested divorce take? It 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 moment of application till the issue of the Certificate of Divorce.
Papers & 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 tells about your mutual and confident intention to terminate your marriage.
- Form 36: Affidavit for Divorce.
This form should include the information about you and your spouse, also it asks about some plans you made after separating. 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 be sworn or affirmed too.
And if you require for child or spousal support you should also complete: Form 13: Financial Statement (Support Claims); Support Deduction Order; and Support Deduction Order Information Form.
How to Serve Your Spouse in Ontario
Ontario family law provides a variety of methods which can help you to 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 by mail or just email your spouse or his/her attorney;
you can use the help of courier service;
you can use a Document exchange. It is a digital platform that allows to upload documents so that a lawyer (or your spouse directly, if he/she is a member of Document exchange) could download it and acknowledge the receipt.
After your partner was served with the paperwork, he or she has 30 days to give an answer.
Online Divorce in Ontario
Nowadays, the Ontario Government provides an opportunity to file the Application for divorce online in such locations as Brampton, Hamilton, Ottawa, and Toronto. So, in these cities, you have not 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 for uncontested divorce but have some difficulties with your paperwork, it is a good idea to use our service, which can help to customize the documents according to local laws and your current case. So, it will be easier for you to fill out 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 considering 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 educational, healthcare, daycare etc are divided between both parents.
Speaking about custody & visitation, there are 3 ways of how to sort out parental rights after the divorce. Making your Separation Agreement or negotiating this theme in court you can choose an option, the most appropriate for your case.
- Joint custody
Means that both parents are the custodial parents. Such a situation demands both spouses to be polite and ready to cooperate. We can distinguish two types of joint custody - Legal and Physical. Joint legal custody implies equal rights of both parents in making important decisions of the upbringing process. Joint physical custody means that each parent should spend 40% time with the child.
- Sole custody
This custody type implies one custodian and one non-custodial parent. The child lives with the parent who has a full custody, and the other parent can use his/her 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 the different child. Usually, split custody can be a good idea, when there are teens who have their own preferences about who they’d better live with.
Rules for Spousal Support in Ontario
Spousal support is not automatic in Ontario divorce, but you can get or pay it if there are some fair reasons to order it. Spousal support is paid by the spouse with a higher income to the other, who cannot support themselves right after the divorce.
Spousal support is aimed not to punish or rob someone, but to recognize, for example, a contribution of the party who quit the career to take care of children, to help the partner to become able to support themselves (these payments can be spent to education or upgrading some professional skills).
The Canada law expects that both spouses want to have a good job and to 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 all that you have must be splitted 50/50. Only “net family property” (property acquired during the marriage, property in your joint name) is divided.
The main concept of Ontario division of property is so-called “equalization”. It is a payment from the one spouse to the other with the purpose to equalize their financial condition. Its amount is calculated in this way - first, both you and your spouse calculate a value of your assets on the date of marriage and on the separation date. So, you see your net family property. Then, whoever has the highest net family property pays to the other spouse to equalize the amounts. But, surely, the are some exceptions, and every certain divorce case should be considered separately.
Division of Debt in Ontario
Debts are considered to be part of the property, so, if the debt is registered in your name - this debt remains your problem. And vice versa. You have not to pay for ex-spouse's debt if you didn’t sign for it.
Nevertheless, as the part of "net family property", debts are taken into account during the equalization calculation, so it is worth to know about all your 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, finally, to make a mutually beneficial Separation Agreement. How does it work? 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 so that its final effects could satisfy each of you.
Mediation is not mandatory in Ontario and you both should agree to take part in it, but especially dealing with an uncontested divorce this help can be pretty relevant.
How to Divorce a Missing Spouse in Ontario
If all your attempts to serve your spouse with the divorce paperwork failed and you actually cannot locate your husband or wife - the good news is you still can get a divorce in Ontario. The worse news is such a case demands more time and bother.
You must convince the court that you did your best to find a missing spouse and you should provide 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, which means a notice in a local newspaper, that the divorce proceedings in process. If your spouse remains silent, after 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" means that the divorce is completed without the participant of your spouse. In the mentioned above case the inability to find the spouse is the legal ground to proceed without him/her. Also, it happens that the spouse just ignores the Divorce Application.
Anyway, if 30 days passed after you have served your spouse with the divorce documents, and there is no answer, you can continue by yourself. You should submit Affidavit for Divorce, Divorce Order and Clerk’s Certificate to the court. Then, 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 the marriage only if your union was invalid and illegal from the start. Basing on grounds for annulment, the judge declares such a marriage null, so it's no need to resolve all the issues that are typical for divorce.
Here are the grounds for annulment in Ontario:
- underage marriage (without parents’ consent)
- fraud or under duress marriage (one of the spouses was consented to the marriage 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 such a concept as Legal Separation in Ontario and, in general, in Canada. In fact, if spouses live separate and apart, they are already considered to be separated. And whatever, how long they remain separated, the divorce doesn’t occur automatically and for this cause.
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 the marriage ("the union of one man and one woman”) by the 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. Finally, same-gender marriages were legalized nationwide.
As a divorce is the flip side of a marriage, all the divorce rules & laws were entered as well. So, the same-sex couples who want to get a divorce in Canada should meet the same requirements as the straight couples. Even if they married in Canada but then left it, at least one of them should be the resident of Canada for one year just before filing for a Canadian divorce.
Military Divorce in Ontario
When a military member wants to get a divorce, he or she can file in different areas:
- the place of the filing spouse’s residence;
- the place of defendant’ residence;
- and the place where the military spouse is stationed.
Please notice, that the choice of an area effects on many details of the divorce proceeding, as the process is governed by the local laws of the certain province, and these laws varies across Canada.
Speaking of a military divorce, a rather frequent question concerns military pension and its division. Worth to know, that this income is not equally divided automatically with the rest of marital property, but your ex-spouse can claim to the part of it. Canadian Armed Forces pension can be ordered to divide by the court in some particular cases. And also, you can voluntary include this point into your Separation Agreement.
How to Divorce a Spouse in Jail in Ontario
Even if your spouse is incarcerated, you should serve him or her with the divorce paperwork. You can use a private process server or ask someone in age over 18 to do it, but no to do it directly. Your spouse can sign the summons and the divorce application, and if the divorce is uncontested he/she has not to do nothing and file no materials in the divorce proceeding. After 30 days your divorce can be granted by the court. The Affidavit takes the place of providing testimony to a judge and is your evidence for the court.
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?
Yes, you can waive a court fee except for $10 if your income is extremely low (and you can prove it to the court) or if you meet the 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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