If you are preparing for a divorce in Ontario, understanding what happens after the court case is started can make the process less overwhelming. The steps will depend largely on whether you and your spouse agree on the issues arising from your separation or whether some matters remain contested.
A divorce legally ends the marriage, but issues such as parenting, child support, spousal support and property division may also need to be resolved. In a straightforward uncontested case, the process can be primarily document-based. In a contested case, additional disclosure, conferences, motions and potentially a trial may be required.
The Ontario divorce process generally begins by filing an Application with the Superior Court of Justice, serving the other spouse, completing any required disclosure and court steps, and resolving any outstanding issues. Once the Court grants the Divorce Order, the divorce usually takes effect 31 days later.
The Court Must Have Jurisdiction Before the Divorce Process Can Begin
Before an Ontario court can grant a divorce, at least one spouse must have been habitually resident in Ontario for at least one year immediately before the divorce proceeding is commenced.
The most common legal ground for divorce is the breakdown of the marriage. Most divorces proceed on the basis that the spouses have lived separate and apart for at least one year, although adultery and physical or mental cruelty are also recognized under the Divorce Act.
For a broader overview of the requirements for getting divorced in Ontario, click HERE.
Sources: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 3 and 8.
The Divorce Process Starts by Filing an Application
A divorce proceeding is started by filing an Application with the appropriate Superior Court of Justice or Family Court of the Superior Court of Justice. The form used depends on what relief is being requested.
Where the only claim is for a divorce, a Form 8A: Application (Divorce) may be used. If other issues such as parenting, support or property are also being claimed, a general Form 8 Application may be required. The court will subsequently assign a court file number to your divorce matter.
For a step-by-step overview of an uncontested divorce filing, click HERE.
Sources: Family Law Rules, O. Reg. 114/99, r. 8.
The Application Must Be Served and the Other Spouse Has an Opportunity to Respond
After the Application is issued, it must be served on the other spouse unless the parties are proceeding jointly. Service gives the responding spouse formal notice of the case and an opportunity to respond to the claims being made.
If the other spouse does not oppose the divorce and no other issues remain in dispute, the divorce may eventually proceed on an uncontested basis. If an Answer is filed and issues remain unresolved, the case follows the contested family court process.
The difference between an uncontested and contested case can significantly affect how many procedural steps are required before a final order is made.
Sources: Family Law Rules, O. Reg. 114/99, rr. 6, 10 and 36.
Financial Disclosure and the Mandatory Information Program May Be Required
Where the case includes claims for support or property, financial disclosure is an important and ongoing part of the process. The parties may be required to exchange financial statements and supporting documents so that the financial issues can be properly assessed and resolved.
For example, a claim involving net property and support claims requires a Form 13.1 Financial Statement. Depending on the claims in the case, the parties may also be required to attend a Mandatory Information Program, which provides information about separation, the family court process and alternatives to litigation.
Failing to provide financial disclosure can delay the case and make settlement more difficult.
Sources: Family Law Rules, O. Reg. 114/99, rr. 8.1 and 13.
Conferences Are Designed to Move the Case Toward Resolution
If the divorce case is contested, the parties will generally attend court conferences before the matter can proceed to trial. These conferences are intended to identify the issues, ensure that necessary disclosure has been exchanged and encourage settlement.
At a Case Conference, a judge can help identify the issues that remain in dispute, discuss settlement possibilities and establish the next procedural steps. If the case does not resolve, a Settlement Conference is generally required before the case is scheduled for trial.
A Settlement Conference allows the parties to narrow the issues, discuss offers to settle and obtain judicial input about the strengths and weaknesses of their positions. If the case still does not resolve, further trial-management steps may follow.
For more information about the required steps in Ontario family court, see the Family Law Rules.
Sources: Family Law Rules, O. Reg. 114/99, r. 17.
A Divorce Is Separate From Parenting, Support and Property Issues
The Divorce Order itself ends the marriage, but it does not automatically resolve every legal issue arising from the separation. Parenting arrangements, child support, spousal support and property division may need to be resolved by agreement or court order.
For married spouses, property claims are generally dealt with through the equalization of net family property under Ontario’s Family Law Act. Where there are children of the marriage, the Court must also be satisfied that reasonable arrangements have been made for their support before granting the divorce.
In some cases, the divorce itself may be separated, or severed, from the remaining issues so that the divorce can proceed while other claims continue. Whether that is appropriate depends on the circumstances of the case.
Sources: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 11; Family Law Act, R.S.O. 1990, c. F.3, ss. 4-5.
If the Case Does Not Settle, the Remaining Issues May Proceed to Trial
Many family law cases resolve before trial. However, if the parties cannot settle the outstanding issues, the case may ultimately proceed to trial for a judge to make a final determination.
A contested case can therefore take considerably longer than an uncontested divorce because the parties may need to complete disclosure, attend conferences, bring motions and prepare evidence before a trial can occur. The time required will depend on the complexity of the issues, the parties’ level of cooperation and court availability.
Even after a court case begins, the parties can continue negotiating and may resolve some or all of the issues before trial.
Sources: Family Law Rules, O. Reg. 114/99, r. 17.
An Uncontested Divorce Can Proceed Primarily Through Written Materials
Where the divorce is uncontested and the other issues have already been resolved or severed, the final divorce process is more straightforward. The Court can review the divorce request on written affidavit evidence without requiring a traditional trial.
The required materials generally include an Affidavit for Divorce, proof of the marriage, and a proposed Divorce Order.
If the documentation is complete and the legal requirements are satisfied, a judge may grant the Divorce Order without the parties having to appear in court.
Sources: Family Law Rules, O. Reg. 114/99, r. 36.
The Divorce Usually Takes Effect 31 Days After the Divorce Order Is Granted
A signed Divorce Order does not ordinarily end the marriage immediately. Rather, the divorce takes effect on the 31st day after the judgment granting the divorce.
Once the divorce takes effect, either former spouse may request a Certificate of Divorce from the Court. The Certificate of Divorce is formal proof of the date on which the marriage was legally dissolved.
Sources: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 12.
The Ontario Divorce Process Depends on Whether the Case Is Contested
The path from filing an Application to obtaining a final Divorce Order can be relatively straightforward where the divorce is uncontested and the parties have already resolved their other family law issues.
Where parenting, support or property issues remain disputed, the process can involve extensive financial disclosure, court conferences, motions and, if necessary, a trial. Understanding which issues need to be resolved and what procedural steps apply can help plan for the process ahead.
Obtaining legal advice from a qualified family lawyer can help ensure that the correct documents are filed, important claims and limitation periods are not overlooked, and the divorce proceeds as efficiently as the circumstances permit.
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Categories: Divorce, Divorce Process, Separation, Family Law.