Divorce and separation can be a confusing process, and many people living in Ontario often turn to lawyers or free resources online to help them through that process. In this article, you’ll learn a little bit about how divorce works in Ontario.
It’s important to keep in mind that the only way to legally end your marriage is to apply to the court for a divorce. In other words, a Judge will decide whether or not to allow your marriage to legally end. If you have a lawyer, then your lawyer will create a document called an “Application” and file it in the Superior Court of Justice or the Family Court branch of the Superior Court of Justice. When lawyers file documents in Court, they hire a professional called a “Process Server”. The process server will pick up your Court documents from your lawyer’s office, and then he or she will deliver the documents to a person called a “clerk”, who works at the Courthouse. Then, the process server will give a copy of those documents to your spouse. These deliveries are called “filing and service”.
If you’ve been learning about the process of getting a divorce in Ontario, you may have seen words like “Simple Divorce”, “Uncontested Divorce”, “Joint Divorce” and “Contested Divorce”, but what do these terms actually mean?
A Joint Divorce is when both spouses agree about all issues regarding their property, home, support payments, child custody, or any other major issues. Both spouses sign all of the necessary divorce papers and your paperwork will tell a Judge that you both want the divorce.
On the other hand, a simple divorce is when one spouse makes an application to the Court without the involvement of the other spouse, and he or she only asks for a divorce, and does not ask the Court to make any decisions about the couple’s property, home, support payments, child custody, or any other major issues.
After your application for divorce is filed at your local Courthouse, a copy must also be given to your spouse. Your spouse will then have 30 days to file his or her own documents in Court. If he or she does not respond to the Application by the deadline, then the divorce is called an ‘uncontested divorce’. However, keep in mind that your spouse can contest the divorce. This does not mean that he or she can stop you from ending your marriage, but it does mean that he or she can ask the Court to make decisions about your property, your home, support payments, child custody, or other major issues.
Regardless of whether your divorce is contested or uncontested, it’s important to understand that a Judge will only allow your divorce to happen if at least one of the following three things has happened:
• You and your spouse have been separated for at least 12 months
• Your spouse committed adultery
• Or your spouse has treated you with cruelty
Keep in mind that only one of these things must happen to get a divorce, and you do not need all three of these situations to apply to you. It’s important to understand that there are specific legal requirements that are necessary to convince a Judge about any of these three situations. For example, if you believe that your husband or wife has committed adultery, then he or she must have had voluntary sexual intercourse with someone else. But an emotional affair or sexual activity which doesn’t involve intercourse is not enough to obtain a divorce.
So what happens after your application for a simple divorce is filed in Court, and your spouse chooses not to respond?
The next step involves a document called an “Affidavit for Divorce”. This document is usually something your lawyer will create for you. An affidavit is simply a list of facts that a person swears to be true. If you are swearing that the facts in your affidavit are true, then you are called an “Affiant”. The Affiant must sign his or her affidavit in the physical presence of a person called a “Commissioner for Taking Affidavits”, and then the Commissioner will also sign the document. Many lawyers, paralegals and government offices can provide this service for you. After the Affidavit has been signed by the Affiant and a Commissioner, it’s ready to go.
The last court filing involved in the process is something called a “set-down”. The earliest this can be done is 31 days after your spouse is given a copy of the Application for Divorce, which we talked about earlier in this article. However, most courts will not allow you to set down the divorce until the court receives something called a ‘clearance certificate’ from an agency in Ottawa. This usually takes one or two months from when the Application was first filed with the court.
From the first day you visit your lawyer’s office, a simple divorce can take between two and three months to complete, and that’s only if you already qualify for a divorce, and your spouse does not contest the divorce. A contested divorce can require several months, and sometimes years, depending on whether or not you and your spouse can agree on important issues such as your property, your home, support payments and child custody.
Also, this article is meant to be an introduction to the basics of how divorce works in Ontario, and it is not intended as legal advice. If you have specific questions about your situation, you should consult a lawyer about your case.