In Ontario, the simplest way to obtain a divorce is to proceed “Uncontested”. This refers to a procedure where one party files the Divorce Application with the court and serves it on the other party. The receiving party allows a 30 day filing deadline to expire without filing an Answer.
After the deadline expires, the person who applied for the divorce files an Affidavit setting out the grounds for divorce. Most people apply for divorce on the basis of one year living separate and apart. The divorce Affidavit must also confirm adequate support for any children from the relationship.
A judge then reviews the Affidavit. If satisfied with the evidence, the judge signs the divorce order.
After a 30 day appeal period has passed, either of the parties can obtain a “Certificate of Divorce” which provides final proof of the divorce.
Whether or not the divorce proceeds uncontested, the procedural steps remain more or less the same: Application, Service, Affidavit, then Divorce Order.
In “contested” cases the receiving party serves and files an “Answer” to the Application. The matter then proceeds through a court process that involves other procedural steps to deal with additional issues raised by the parties. In addition to a request for divorce, contested cases often deal with other legal issues involved in marriage breakdown.
Divorce in Ontario requires at least one of the parties to reside in the province for at least a year before the application. It does not make a difference where the parties married.
Aside from one year separation, other grounds for divorce include adultery and/or mental cruelty. Either of these latter two grounds entitles the applicant to an immediate divorce without waiting for a year after separation. But remember, claiming adultery or mental cruelty tends to attract opposition from the other party. This could lead to a more complicated proceeding, with the other party filing material to dispute and oppose the grounds for divorce. For this reason, most divorces proceed on the basis of a year’s separation.
Before applying for divorce, some parties manage to negotiate a Separation Agreement setting out their rights and obligations. This facilitates the divorce process because it addresses all other issues in advance. A separation agreement may also set out arrangements for the divorce (who files the Application, who pays, etc.)
Divorce triggers a limitation period to make claims for rights arising from the marriage. Issues involving property division or spousal support require careful consideration prior to filing a divorce application.
Parties often manage to cooperate in obtaining a divorce. With the benefit of accurate legal advice, many resolve other issues prior to applying for divorce. If you require more information about divorce, contact us for further details.
