Until married couples obtain a divorce, the law still considers them to be married, even if they are living separate and apart. This may have implications on spouses' estates rights, entitlements to benefits and life insurance policies, and the ability to make end-of-life decisions for incapable spouses. Before seeking a divorce, it is important to obtain advice on how these rights may be affected.
Interestingly, while many family law issues can be resolved outside of court, a divorce requires standardized court forms and a judge's signature. You cannot avoid the court process if you want a divorce.
STEPS TO OBTAIN A DIVORCE
Eligibility in Ontario
Before applying for a divorce, it is important to ensure that spouses meet the following three eligibility criteria:
- The spouses were legally married in Canada or in any other country;
- The spouses intend to separate permanently from one another, or they have already separated with no reasonable prospect of reconciliation; and
- At least one spouse has lived in Ontario for at least 12 months preceding his or her application for divorce.
Breakdown of the Marriage
There is only one basis on which a judge can grant a divorce – a "breakdown of the marriage". This can be proven in one of three ways: (1) adultery; (2) cruelty; or (3) separation for a period of at least one year. By far the most common route couples choose to prove a breakdown of the marriage is the one year separation period. Couples who choose adultery or cruelty have the added (and difficult) burden of proving this in court, a task that is often expensive and lengthier than the one year waiting period. Additionally, spouses may begin their application for divorce at any time post-separation, but the order can only be granted after the expiration of the one year time period.
Divorce Application and Corollary Issues
The spouse who is seeking the divorce becomes the Applicant in the proceedings, and will prepare an Application. The particular form to be used will depend on whether any "corollary issues" arise from the spouses' separation, such as child support, spousal support, and property division. If children are involved, judges are prevented from granting a divorce order unless they are satisfied that reasonable arrangements have been made for the support of the children. Judges may also refuse to grant a divorce unless there is satisfactory evidence that the remaining issues are resolved – often this is shown by way of a valid separation agreement. If corollary issues are in play, the Applicant will begin with a Form 08 – Application (General). If no corollary issues are present, the Applicant will use a Form 08A – Application (Divorce) to start the proceedings.
Issue, Serve, and File
Once the Application is complete, it must be taken to the appropriate courthouse where it gets stamped by a court clerk and assigned a court file number. This is referred to as "issuing" the Application.
Following this, a copy of the Application must be personally served on the opposing spouse, who becomes the "Respondent" in the proceedings. Service must be done by somebody other than the Applicant, who is at least 18 years old. The person who served the Respondent must then complete an Affidavit of Service, to be sworn in front of a commissioner of oaths, then filed at the courthouse – spouses often hire process servers to complete these steps.
Affidavit for Divorce
Once the Respondent has been served, he or she has 30 days to deliver a response. If this 30 days expires without a response, the Applicant will complete an Affidavit for Divorce, along with three draft Divorce Orders. The Affidavit must stipulate all the details of the marriage, and prove that the corollary issues have been resolved (or that they are not issues at all – when parties have no property or children, Toronto (Any)for example). If there is insufficient evidence to this effect, the judge may refuse to grant the divorce order. Assuming the judge is satisfied with the evidence, he or she will sign the three draft orders provided, then mail one to each of the spouses, and keep one for the court file.
30-day Waiting Period
The day the judge signs the divorce order triggers a final 30-day waiting period, after which the divorce takes effect. In the eyes of the law, the spouses' marriage is then dissolved.
Navigating the court process can be daunting, even when both spouses are on the same page and share the same goal to obtain a divorce. Hiring a lawyer from the outset provides the added assurance that documents are completed properly, and the procedure is followed in a timely manner.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.