How to File for Divorce

Filing for divorce is a significant step that can be both emotionally and legally complex. Understanding the process and requirements can help make it smoother and less stressful. This comprehensive guide will walk you through the steps of filing for divorce, with an emphasis on Ontario, Canada, including the necessary documents, procedures, and best practices to ensure your divorce filing is correct and complete.

Understanding Divorce in Ontario

What Is Divorce?

Divorce is the legal dissolution of a marriage, recognized by the court system. It ends the marital relationship and allows both parties to remarry if they choose. In Ontario, divorce is governed by the Divorce Act, a federal law that applies across Canada. Each province, including Ontario, has specific procedures and requirements for processing divorce applications.

Grounds for Divorce

In Ontario, there are three primary grounds for divorce, as outlined by the Divorce Act:

1. Separation for One Year: The most common ground, requiring that the couple has lived apart for at least one year with the intent to end the marriage.
2. Adultery: When one spouse has committed adultery, the other can use it as grounds for divorce. Proof or an admission is required.
3. Cruelty: If one spouse has inflicted physical or mental cruelty on the other, making it intolerable to continue the marriage.

While the one-year separation is the least contentious and simplest ground to prove, the other two grounds may involve more complex evidence and legal proceedings.

Preparing to File for Divorce

Assessing Your Situation

Before filing for divorce, assess whether you are ready for the process. Consider factors such as:

• Living Arrangements: Ensure you and your spouse have been living apart if you’re using the one-year separation as the grounds.
• Financial Stability: Understand your financial situation, including shared debts and assets.
• Children: Plan for child custody and support if you have dependents.

Choosing Between a Simple, Joint, or Contested Divorce

In Ontario, there are three main types of divorce applications:

1. Simple Divorce: Filed by one spouse, where no other claims are being made beyond the divorce itself.
2. Joint Divorce: Filed together by both spouses when there is mutual agreement on the divorce and any other related claims.
3. Contested Divorce: Filed when the spouses do not agree on issues such as property division, spousal support, or child custody. This type can lead to court proceedings and a longer timeline.

Consulting with a Lawyer

While it is possible to file for divorce on your own, consulting with a family lawyer is often recommended, especially for contested divorces. A lawyer can provide guidance on complex issues, protect your rights, and help avoid common mistakes that could delay your divorce.

Gathering Required Documents

Key Documents Needed

To file for divorce in Ontario, you must prepare and submit specific documents. These include:

• Application for Divorce (Form 8A): The primary document that initiates the divorce process.
• Marriage Certificate: A certified copy of your marriage certificate. If it is not in English or French, you’ll need to provide a translated and certified version.
• Financial Statement (Form 13 or Form 13.1): Required if there are claims for spousal support, child support, or property division.
• Affidavit for Divorce (Form 36): In uncontested divorces, this affidavit confirms the details of your application.
• Separation Agreement: If applicable, include a copy of any signed separation agreements that outline the terms agreed upon by both parties.

Obtaining Your Marriage Certificate

If you do not have your original marriage certificate, you can obtain a certified copy from the province or country where you were married. For marriages in Ontario, you can request a copy online through the ServiceOntario website.

Preparing Financial Disclosures

If your divorce involves financial claims, both parties must disclose their financial situations fully. This includes:

• Income Information: Recent pay stubs, tax returns, and Notice of Assessments.
• Asset Documentation: Bank statements, property deeds, investment portfolios, and retirement accounts.
• Debt Records: Documentation of any shared or individual debts.

Completing these disclosures is vital for ensuring a fair division of assets and support calculations.

Filing Your Divorce Application

Where to File

In Ontario, divorce applications are filed at the Ontario Superior Court of Justice. You can choose the courthouse closest to where either you or your spouse resides. Check the Ontario Courts website for locations and specific filing instructions.

Filing the Application

1. Complete the Application Forms: Ensure that the Application for Divorce (Form 8A) and any supplementary forms are filled out correctly.
2. Make Copies: Prepare three copies of the completed forms—one for the court, one for your spouse, and one for your records.
3. Pay the Filing Fee: The fee for filing a divorce application in Ontario is typically around CAD 632, but it may vary. You can pay by cash, debit, or certified cheque.
4. Submit Your Application: File your completed application and required documents at the court’s family counter.

Once your application is filed, the court will provide you with a file number and stamped copies of your documents.

Serving Divorce Papers

Serving Your Spouse

After filing, you must serve the divorce papers to your spouse within six months. Serving papers ensures that your spouse is officially informed of the proceedings. In Ontario, you cannot serve the papers yourself. Options for service include:

• Personal Service: Delivered by a friend, family member over 18, or a professional process server.
• Service by Mail or Courier: Must include a signed Acknowledgment of Service.

Proof of Service

The person who serves the papers must complete an Affidavit of Service (Form 6B), which confirms when, where, and how the papers were served. This affidavit must be filed with the court to demonstrate that proper service was completed.

Substituted Service

If you are unable to locate your spouse or they are avoiding service, you can apply for substituted service. This involves asking the court to allow an alternative method, such as email or posting a public notice.

Responding to a Divorce Application

What Your Spouse Needs to Do

Once your spouse has been served, they have 30 days to respond if they live in Ontario, 60 days if outside of Canada, but within the U.S. They can:

• Agree to the Divorce: By filing an acceptance of service and supporting documents.
• File an Answer: If they disagree with any part of the application, they must file an answer detailing their position.
• Take No Action: If they do not respond, you can proceed with an uncontested divorce, and the court may issue a default judgment.

Filing a Response

If your spouse files a response or contest, the process moves to the negotiation stage. Mediation or court hearings may be necessary to resolve disputes over property division, child custody, and support.

The Divorce Hearing and Final Judgment

Scheduling the Divorce Hearing

For uncontested divorces, you may not need to appear in court. Instead, the judge will review your submitted documents and, if everything is in order, grant the divorce. For contested divorces, a hearing date will be set, and both parties may be required to present evidence and arguments.

The Role of a Judge

In both uncontested and contested cases, the judge’s role is to ensure that the divorce is fair and complies with the law. They will review:

• The Terms of the Separation Agreement: Ensuring that it is reasonable and lawful.
• Custody and Support Arrangements: Confirming that child support follows the Child Support Guidelines.
• Division of Assets: Assessing the fairness of property and debt division.

Finalizing the Divorce

Once the judge is satisfied, they will grant a Divorce Order. This order becomes final 31 days after it is issued. During this period, neither party can remarry. After 31 days, you can request a Certificate of Divorce from the court, which serves as proof that your marriage has been legally dissolved.

Special Considerations in Filing for Divorce

Filing for Divorce in a Common-Law Relationship

Common-law partners in Ontario do not need to file for divorce, as they are not legally married. However, they may still need to address issues like property division, spousal support, and custody through a separation agreement or court proceedings.

Filing for Divorce When Children Are Involved

If children are part of the divorce, courts prioritize their well-being. You must provide a Parenting Plan that outlines custody and access arrangements. Courts will ensure that child support aligns with the Federal Child Support Guidelines.

What to Do if Your Spouse Is Uncooperative

In some cases, your spouse may refuse to participate in the process or actively hinder it. If this happens, you can:

• Request a Default Judgment: If your spouse fails to respond within the allocated time, you can ask the court to proceed without their input.
• File for Contempt of Court: If your spouse disobeys court orders related to service or disclosure, you can seek a contempt ruling.

Common Challenges and Solutions

Missing Documents

If you cannot locate necessary documents like your marriage certificate or financial records, you may need to:

• Request Duplicates: Contact the issuing authority for replacements.
• Use Affidavits: Provide sworn statements as temporary proof.

Difficulty Serving Papers

If serving papers proves difficult, hiring a professional process server or applying for substituted service can resolve the issue.

Delays Due to Disagreements

When disputes over property, custody, or support arise, consider:

• Mediation: A neutral third-party mediator can facilitate negotiations.
• Collaborative Divorce: Both parties, with their lawyers, work together to reach an agreement without going to court.

Conclusion

Filing for divorce can be a complex process, but understanding the steps and requirements can make it more manageable. Whether you are pursuing a simple, joint, or contested divorce in Ontario, being informed about the necessary documents, procedures, and potential challenges is key to a smoother experience. Consulting with a family lawyer, preparing thorough financial disclosures, and knowing your legal rights can help protect your interests and achieve a fair outcome.

Remember, the divorce process is not just a legal step—it’s a significant life change. Seeking emotional and financial support during this time is as important as meeting the legal requirements. By following this guide, you will be well-equipped to navigate the path of filing for divorce in Ontario with greater confidence and clarity.