Divorce Frequently Asked Questions
You do not have to divorce unless you intend to remarry.
Some parties opt to separate and forgo the formal divorce process. A separation agreement can be used to determine property division, child custody, and support. You can also obtain a court order for property division, child custody, and child and spousal support without obtaining a divorce. Separating spouses who are not also pursuing a divorce can apply under the Family Law Act for these forms of relief.
However, it is important to keep in mind that separation is not the legal termination of your marriage. Only a Divorce Order can formally terminate your marriage. Furthermore, if you choose to separate without getting a divorce, there can be repercussions. For example, under wills and estates law, separated couples are still considered spouses. This means that an estranged spouse could potentially benefit by inheriting property, including money, under a valid will, contrary to your intentions.
The length of any given divorce varies depending on:
The grounds for proving marriage breakdown;
- Whether the divorce is contested or uncontested;
- Court docket load; and
- Document preparation.
If the grounds for proving breakdown of the marriage are a one year-separation, then parties must typically wait one year from the date of separation for the divorce order to be granted and an additional 31-day period for the divorce order to take effect.
However, please note that simply because you are eligible to obtain a divorce one year after the date of separation does not mean that you will be divorced one year after the date of separation. There are a variety of issues that must be proven, including that reasonable arrangements for child support are in place, in order to obtain a divorce.
If the divorce application cites either adultery or cruelty as the reason for marriage breakdown, a court may grant the divorce immediately under the “Special Circumstances” section of the Divorce Act (s. 12(2)). Using this rule, the courts may waive the 31-day period, provided neither spouse intends to appeal the order.
An uncontested divorce is a much easier matter for the courts to decide upon, in that there are no outstanding conflicts. Normally parties to an uncontested divorce may present evidence by way of written affidavit instead of appearing before a judge.
Courts in Ontario are heavily burdened with family cases and lengthy delays are typical. Working with a lawyer to negotiate an agreement instead of awaiting a judicial decision can expedite the separation and divorce process.
Same-sex couples that normally reside in Canada are entitled to the same divorce process as heterosexual couples. The Divorce Act does not distinguish between heterosexual and homosexual couples, nor does Ontario’s Family Law Act (which governs property claims for divorcing spouses), and Canadian courts apply the law equally to all married couples.
The only situation in which divorce may be different for same-sex couples is where the couple came to Canada to marry because same-sex marriage is not allowed in their home jurisdiction. If they return to their home state, but later decide to divorce, the home state cannot grant a divorce because it never recognized their marriage as valid in the first place.
Until recently, Canada would not grant these couples a divorce either, unless one of the spouses had lived in Canada for one year before applying for divorce. The one-year residency requirement under the Divorce Act applies to all spouses seeking divorce in Canada, but it resulted in additional hardship for same-sex couples who could not simply apply for divorce in the jurisdiction in which they had resided for the past year.
In order to address that hardship, the government passed Bill C-32, or the Civil Marriage of Non-Residents Act. That Bill amended the Civil Marriage Act in order to allow couples living elsewhere who were married in Canada to obtain a divorce in Canada, if they cannot obtain one in their home jurisdiction. The Bill was passed by the House of Commons and the Senate in June 2013 and is currently awaiting royal assent.
Note, however, that the amendments will not give Canadian courts the jurisdiction to deal with any forms of corollary relief, such as property division or spousal support. A Canadian court only has jurisdiction to grant the divorce itself.
A divorce order can only be granted by a court of law. In order to obtain a divorce, an Application must be filed with the court. If the divorce is contested, or if some forms of corollary relief (support, property division, custody and access) are contested, you and your spouse will have to appear in court in some capacity. If the Application for divorce is made by way of a joint Application for divorce (there are no contested issues between the parties), evidence given by written affidavit will usually suffice, meaning that a court appearance may not be necessary.
See How to Get an Uncontested Divorce for more information.
In addition to the application for divorce, you must provide the court with your original marriage certificate. If you do not have your marriage certificate and you were married in Ontario, you may obtain a copy of your marriage certificate from Service Ontario. You may contact ServiceOntario at www.serviceontario.ca or 1-800-267-8097.
If you were married in another province or territory in Canada, you may order a copy of your marriage certificate from the government of that province or territory. If you were married outside of Ontario and your marriage certificate is in a language other than English, you must have the license translated.
The best course of action is to seek legal advice from a qualified family law lawyer. If you do not respond to the Application, a judgment may be ordered against you requiring you to pay support, or divide family property.
If you intend to dispute the claims within the Application, an Answer (Form 10) must be filed with the court within 30 days of receiving the application. See Form 10: Answer for more information on how to complete and file this document, and what supporting documents are required.
Costs are a financial consequence of adjudicated matters and involve a form of reimbursement by the unsuccessful party for legal fees incurred by the successful party. Costs are meant to compensate the successful party for a portion of their legal fees and to discourage abuse of the judicial system.
When seeking relief from the court, costs may be ordered against you for several reasons pursuant to the Family Law Rules. Further, there is a presumption that the successful party in a matter is entitled to receive a costs award at the court’s discretion. Common reasons for ordering costs against a party include:
- Failure to follow the rules of the court, or abuse of the judicial process;
- Failure to follow an order of the court;
- Withdrawing any part of an Application, Answer or Reply;
- Failure to make complete and honest financial disclosure;
- Being unprepared for a court appearance, resulting in your matter being adjourned;
- Acting in bad faith, or engaging in malicious conduct.
Self-represented clients are held to the same standard as a lawyer representing a client, and courts expects parties to have a well-informed appreciation of the legal process.
One of the most important issues related to costs is the consequence of failing to accept a reasonable Offer to Settle. If the party who made the offer obtains an order that is as favourable as, or more favourable than, the offer presented to you, costs can be ordered against you. See The Layperson’s Guide to Procedural Rules for more information on offers to settle.
Conduct also has an impact on costs; if you are the successful party in a case but are deemed to have behaved unreasonably, the court has the authority to reduce or annul your costs award. Costs should be considered when attempting to bring matters of little financial significance to court. Unlike the negotiation process, there are considerable risks associated with taking your matter to court.
When applying for a divorce, a separating couple is seeking an end to their legal, civic union. While a divorce will formally dissolve a marriage in the legal sense, a civil termination to marriage is not always recognized by religious authorities. Parties who wish to remarry within their religion in the future may require further, culturally sanctioned actions to remove any religious barriers to remarriage. For example, in the Jewish faith a wife is precluded from remarrying until she receives the “get” from her former husband.
The Divorce Act (s. 21.1) contains provisions regarding the removal of barriers to religious remarriage which affect both current and former spouses. See the Separation article The Role of Religion in Separation/Divorce for more information about how to have a religious barrier to remarriage removed.