If you are married and separating in Ontario, obtaining a divorce legally ends the marriage. However, getting a divorce is a separate issue from resolving matters such as parenting, child support, spousal support and property division.
Ontario divorces are governed primarily by the federal Divorce Act and are granted by the Superior Court of Justice. Understanding the requirements and the available options can help spouses determine the most appropriate way to proceed. Speak with a family lawyer to better understand your options regarding getting a divorce in Ontario.
You Generally Need One Year of Ontario Residency
Before a divorce proceeding can be started in Ontario, at least one spouse must have been habitually resident in Ontario for at least one year immediately before the proceeding is commenced.
This means that simply being married in Ontario does not, by itself, give an Ontario court jurisdiction to grant a divorce. At least one spouse must have lived in Ontario for the required one-year period.
Divorce proceedings in Ontario are dealt with by the Superior Court of Justice or the Superior Court of Justice Family Court. The Ontario Court of Justice does not have jurisdiction to grant a divorce.
Source: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 3.
The Marriage Must Have Broken Down
The Divorce Act provides one ground for divorce: breakdown of the marriage.
Marriage breakdown can be established in one of three ways:
- The spouses have lived separate and apart for at least one year;
- The spouse against whom the divorce is sought has committed adultery; or
- The spouse against whom the divorce is sought has treated the other spouse with physical or mental cruelty of a kind that makes continued cohabitation intolerable.
Most divorces proceed on the basis of one year’s separation.
The spouses can begin a divorce proceeding before the one-year separation period has expired, provided they were already living separate and apart when the proceeding was commenced. However, the divorce cannot generally be granted until the required one-year period has been completed.
Spouses may also live under the same roof while separated. The question is whether they are living separate and apart, including whether there is an intention to live separate and apart. A reconciliation attempt does not necessarily restart the separation period. A period of reconciliation lasting no more than 90 days does not interrupt the period of separation if reconciliation was the primary purpose of the spouses resuming cohabitation.
To learn more about when the one year separation period begins, click here.
Source: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 8.
There Are Different Ways to Apply for a Divorce
The appropriate process depends largely on whether the spouses agree about the divorce and the other issues arising from their separation.
- Joint Divorce Application
If both spouses agree to the divorce and the terms of any other orders being requested, they may file a joint application.
There is no respondent in a joint application, and any order sought must be made with the consent of both spouses. This can be an efficient option where the parties have already reached an agreement concerning their outstanding family law issues.
- Individual Divorce Application
One spouse may also start the divorce proceeding individually by filing an application naming the other spouse as the respondent.
If the respondent does not oppose the divorce, the matter may proceed as an uncontested or “simple” divorce. The responding spouse does not necessarily have to participate in every step of the process if they do not contest the application.
This option may be appropriate where the parties have resolved their other issues through a separation agreement, but one spouse wishes to proceed with the divorce application.
If the respondent opposes the divorce or raises claims that cannot be resolved by agreement, the matter becomes contested.
A contested proceeding can involve additional court appearances, disclosure, motions, settlement discussions and, where necessary, a trial. The divorce may ultimately be granted by the court, but the process can be considerably more complicated than an uncontested divorce.
Source: Family Law Rules, O. Reg. 114/99, r. 36.
If You Have Children, Child Support Must Be Addressed
Where the parties have children of the marriage, the court has a specific duty to ensure that reasonable arrangements have been made for their support before granting the divorce.
The court considers the applicable child support guidelines. If reasonable arrangements for child support have not been made, the court may delay granting the divorce until appropriate arrangements are in place.
This does not necessarily mean that every parenting or support issue must be litigated before a divorce can be granted. However, the court must be satisfied that appropriate arrangements have been made for the children.
Source: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 11.
When Does the Divorce Become Final?
A divorce does not generally take effect immediately when the judge grants the divorce.
Subject to certain special circumstances, the divorce takes effect on the 31st day after the judgment granting the divorce.
Once the divorce takes effect, either spouse may request a divorce certificate from the court confirming that the marriage has been legally dissolved.
In special circumstances, a court may order that the divorce take effect earlier than the 31st day, provided the statutory requirements are satisfied, including the parties’ agreement and undertaking not to appeal.
Read here to learn more about how long a divorce usually takes in Ontario.
Source: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 12.
The Right Divorce Process Depends on Your Circumstances
The basic requirements for obtaining a divorce in Ontario are relatively straightforward: there must be a breakdown of the marriage, the Ontario residency requirement must be satisfied, and the required court documents must be filed.
The more significant question for many separating spouses is determining how to proceed.
A joint or uncontested divorce may be appropriate where the parties have reached an agreement. Where significant issues remain unresolved, a contested proceeding may be necessary. In either case, obtaining legal advice early can help ensure that the divorce application properly addresses the parties’ circumstances and that important issues such as support, parenting and property are not overlooked.
Sources: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 3, 8, 11 and 12; Family Law Rules, O. Reg. 114/99, r. 36.
Attention Legal Counsel: Professional Mediation Services
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Why lawyers refer cases to Andrew:
- 30+ years family law litigation experience providing courtroom-informed reality testing
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Cases we handle: Negotiation stalemates, complex asset division, support calculation disputes, parenting arrangements, multi-jurisdictional matters, and post-separation modifications.
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Categories: Divorce, Separation
