How to File a Simple Divorce in Ontario: A Step-by-Step Guide

• by David Frenkel

How to File a Simple Divorce in Ontario: A Step-by-Step Guide

Divorcing your spouse can be one of the most stressful experiences anyone can go through. As legal proceedings involving divorce can be quite complex, it is always encouraged to obtain legal advice and have a consultation with a family lawyer experienced in divorce matters, particularly if the divorce is contested. Among the several types of divorce proceedings you can have in Ontario, one of the simplest ones is referred to as the simple divorce. On average, the typical divorce takes between 4 to 6 months, but can be longer in complex matters. The following will provide a step-by-step guide on how to file for a simple divorce in Ontario. It is important to understand that the following information should not replace full and informed legal advice from a family lawyer and should only be used as a guide to help you on your way to divorcing your spouse.

Step 1: Decision to Separate & Entitlement to Divorce

To separate or not to separate? That is the question. If you and your spouse are at a crossroad and are unsure of whether reconciliation is probable, it is important to take steps to ensure whether separation will occur. With a possibility of reconciliation, courts are unlikely to grant a divorce order. Only when you or your spouse are certain that separation will occur, should you continue to Step 2.

To qualify for divorce in Ontario, there is some criteria you must meet:

  1. You and your spouse must have been legally married in Canada or in any other country.
  2. You and your spouse lived in Ontario for at least 12 months prior to filing the divorce application.
  3. You are prepared to permanently separate from your spouse or have taken steps to do so. In other words, there is no foreseeable possibility of reconciliation.

Step 2: File for Divorce (Form 8A: Application (Divorce))

If you have decided to divorce your spouse, the next step would be to apply (Form 8A: Application (Divorce)) for a divorce with the Ontario Superior Court of Justice.

Depending on whether you meet some criteria, courts may permit the electronic submission of a divorce application. If you and your spouse have been separated for at least 1 year, are able to afford the divorce application without a fee waiver, and have been married in Canada, you may apply for a Simple Divorce online.

Step 3: Determine Grounds for Divorce

There are two different grounds for divorce, no fault divorce and fault divorce.

A no fault divorce will only be granted through the courts until after you and your spouse have been separated for a full year. The courts recognize that it may not be possible to live separately for a year, due to finances or children, and have determined that it means you must be living separate lives. In other words, even if you and your spouse are living under the same roof, the court may still consider you living separate and apart. Filing for a “for fault divorce” means that you are filing for divorce based on the grounds of cruelty or adultery and that the ending of the marriage is the fault of one sole spouse. When claiming a fault divorce, you must show proof and substantial evidence as to what happened in the marriage, or what the other party did, to cause a divorce.

Step 4: Determine Whether the Divorce is Contested or Uncontested

After the grounds for divorce have been determined, you must assess whether your divorce is contested or uncontested.

An uncontested divorce is when both spouses agree to the reason for the divorce as well as the terms of the divorce. If the divorce is uncontested, you are only required to file one application. A contested divorce occurs when spouses do not agree on the reasons/terms for the divorce. If this is the case, then both spouses are required to fill out their own separate divorce applications and file them with the courts separately.

Step 5: Are There Children Involved?

If you and your spouse have children, you must include an outline of your parenting agreement, and any plans for custody and support with your divorce application. If it is a contested divorce each spouse will provide their preferences for parenting separately. In contrast, if it is an uncontested divorce, only one outline of agreed upon arrangements are required.

It is important to have a parenting plan in writing and filed with the courts so that there is a record of what decisions have been made to avoid future conflict. A parenting plan, if signed by both parties, will be legally binding under the Divorce Act and both parties must adhere to the terms that are set out in it.

Step 6: File with the Court or File through your Lawyer

In Ontario, there is a court filing fee associated with filing your divorce. The fee for filing totals $632 with the first payment of $212 being due when the application for divorce is filed. An additional court fee of $420 is to be paid before the divorce is reviewed by the court.

Step 7: Wait for Clearance and for a Response by your spouse

Once the divorce application is submitted, you and your spouse must wait for clearance from the Divorce Registry. Once cleared, your spouse will have an opportunity to respond to the application you submitted.

Step 8: Determine whether your spouse provided an answer

After having received clearance from the Divorce Registry with your divorce application, if your spouse has not provided an answer within 30 days of the date of your application, you may set down your divorce with the court. To do so, you need to file with the court the following documents, an Affidavit for Divorce, the Divorce Order, and the Clerk’s Certificate.

If your spouse has filed a response, the divorce will be considered as ‘contested’ whereby you and your spouse disagree as to the reasons and/or terms for the divorce (discussed above).

Step 9: Wait for court’s decision

After you submitted your application, and your spouse provided a response (if any), the judge will review all application materials and determine whether they will provide you with a Divorce Order.

Step 10: Waiting period and Certificate of Divorce

Once 30 additional days have passed after the divorce order was granted, you may receive your certificate of divorce. Once you have your certificate of divorce, you are legally divorced, entitling you the right to remarry.

Although filing for divorce can be done without a lawyer, especially with simple and uncontested divorces, it is always encouraged to consult with a family lawyer. By speaking with a family lawyer experienced in divorce proceedings, you ensure having an opportunity to understand the rights and obligations you and your spouse have.