DIVORCE

What is a "Divorce"?
A divorce ends the marriage.  The biggest impact is that it allows you to re-marry.  (This is different than an annulment, which can make a marriage void from the start.)

 

Becoming divorced may affect some other interests, for example:

• rights to survivor benefits under the spouse's pension plan

• ability to be covered by spouse's health care benefits

• the period you have to make a property claim against your spouse

• the protection given matrimonial homes [see article]

• inheritance if you or your spouse die

 

The following are not resolved by a divorce:

• parenting arrangements for the children;

• child or spousal support;

• claims for division of or possession of property

• changes to last names

 

In Ontario, the law treats married people separately when it comes to financial issues.  For example, the debt of one spouse is not the debt of the other spouse, unless both spouses incur the expense.  You do not need a divorce to separate your finances.  (An exception is a debt incurred for the "the necessities of life".)

 

The affect of a divorce may be different outside of Ontario and, especially, outside of Canada.

Most rights and obligation in Ontario can arise from living together for a period, even if you are not married.  Most family law claims are unaffected by a divorce.

 

What are the Grounds for a Divorce?
A divorce may be granted if:

• the parties have been separated for twelve (12) months and there is no reasonable prospect of reconciliation, or

• the other party committed adultery (that was not forgiven or acquiesced to), or

• the other party has been abusive (that was not forgiven or acquiesced to)

 

There is little benefit in pursuing a divorce for grounds other than separation. Alleging adultery or abuse can make the case more complicated, more expensive, and more lengthy.

 

What if We Try to Reconcile?
Reconciliations adding up to less that 90 days do not affect the running of the twelve month separation period.

 

What about the Child Support Obligation?
If you have underage children, you must convince the judge that appropriate arrangements for the support of the children have been made.

 

What about Fraudulent Immigration Marriages?
A judge will refuse to grant a divorce if he/she believes the parties married without any intention to be together as husband and wife.  The most common example is people marrying for immigration purposes but then living separate lives and divorcing as soon as possible.  (It is not a problem to get married to help with immigration, so long as you intend to live together as husband and wife indefinitely.)

 

A judge may require evidence of the parties intention if the marriage is of very short duration, especially if there are signs of immigration.

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What Documents Do You Need Regarding Marriage
An original copy of the Marriage Certificate (or similar document) is required.  If it is not in English or French, you must provide a translation (by a certified translate), with a sworn declaration of translation.

 

If you were married outside of Canada and one of you were previously married, you must provide proof of the termination of that previous marriage - either proof of death or divorce.

 

What is the Jurisdiction of the Ontario Court?
There are rules to prevent a person from visiting another jurisdiction and getting a quick divorce which ignores the policy decisions that went into the laws of divorce in Canada.  To support this rule amongst jurisdictions, Ontario limits when you can obtain a divorce in Ontario.

 

To obtain a divorce in Ontario, one of the parties must have ordinarily resided in Ontario for the twelve (12) months prior to applying for a divorce.  (There are some special rules if the other jurisdiction will not grant a divorce because they do not recognize your right to married (for example, same-sex marriages).

 

What is Better - an Uncontested Divorce or Joint Divorce?
Normally, when there are no other claims, a divorce will proceed on an uncontested basis.  The other party must be served with the court documents.  If no response by the other party is filed, then a final divorce order can be requested.  You do NOT require the consent of the other party.

 

There is little advantage in a joint divorce (one where the parties apply together for a divorce).  You may get the divorce thirty days earlier.  However, if one party stops cooperating, then you have to have the joint divorce dismissed and start over again. You may also have to involve two lawyers rather than one.  Many lawyers will charge more for a joint divorce, than for an uncontested divorce.

 

What is the Process for Uncontested Divorce?

• Prepare and file with the court the Application for Divorce (and pay $157 to the court).

• Arrange to have the other party served.  See Personal Service article.

• Prepare, have sworn, and file the Affidavit of Service.

• Wait 30 days.  Hopefully, the other party does nothing.

• Prepare and have sworn the Affidavit of Divorce.  Prepare the other documents required.

• File Affidavit for Divorce, draft Divorce Order, and other documents (and pay $280 to the court).

• Wait until you receive the Divorce Order in the mail.

• When the divorce is final under the Divorce Order, go to court and obtain a Certificate of Divorce (and pay $19 to the court).

 

What are Court Costs?
The court will charge over $500 in fees for an uncontested or joint divorce.  If you have a very low income and few assets, the court may waive these fees.

 

Do You Need A Lawyer?
It is very important to get advice about your family law matter in general.  The divorce and any delay can impact any other claims you have.  In particular, you must sort out child support first.  Generally, all other issues should be resolved before you try an uncontested divorce.

 

Working through the steps and documents for an uncontested divorce can be challenging, but it is possible. If you make a mistake, it may require a lawyer to fix it. Whether you should hire a lawyer, or do it yourself, depends on how comfortable you are at doing it on your own, on what you can afford, and on how quickly you want the divorce.