Eligibility Requirements for Divorce in Ontario

Residency and Legal Marriage Verification

For a divorce in Ontario, you must establish that at least one spouse has lived in the province for at least one year before filing. This ensures that the court has jurisdiction over the matter.

We also need to verify that the marriage is legally recognized. A marriage certificate serves as proof of this. If married in Ontario, we can obtain a copy from ServiceOntario. If married outside of Canada, additional steps may be needed to validate the marriage under Ontario law.

Grounds for Divorce

Under the Divorce Act (DA) of Canada, the only recognized ground for divorce is the breakdown of the marriage, which can be established in one of three ways:

• living apart for at least one year
• adultery
• mental or physical cruelty

Separation

The most common is where spouses have lived separately for at least a year. Couples must live apart for at least one year before they can obtain the divorce order. It should be noted that parties can commence the divorce process before 1 year of separation has elapsed, but a court cannot grant the divorce until the 1 year has passed. Couples do not need a formal separation agreement to start the one-year period, but having one can help clarify issues like child custody and spousal support. This period allows time for reflection and ensures that the decision to divorce is not made hastily.

Adultery

Adultery is considered when one spouse has a sexual relationship outside the marriage. This ground for divorce requires proof, which can be challenging to obtain. It also requires the naming of the person with whom the spouse engaged in the affair. If the spouse admits to the affair, the process can be expedited. Adultery can significantly impact the emotional aspects of the divorce, making it one of the more painful grounds for separation. Legal representation can be highly beneficial here due to the need for substantial evidence.

Cruelty

Cruelty as a ground for divorce involves physical or mental abuse. Evidence of cruelty can include medical records, police reports, or testimonies. Like adultery, proving cruelty can be complex and typically requires legal help. It’s crucial to document all instances of cruelty thoroughly. The court takes these accusations seriously due to their severe nature, often involving significant safety concerns for one or both spouses.

No Fault Divorces

Canada’s Divorce Act is a “no fault” structure. This means that even if a ground for divorce is adultery or cruelty, it does not change a spouse’s rights or obligations to parenting, child support, or spousal support.

Filing for a Simple Divorce in Ontario

If your situation meets one of the three grounds detailed above and you or your spouse has been a resident of Ontario for at least a year, you can begin the process.

When filing for divorce in Ontario, one must complete several steps, including gathering all required forms, preparing an affidavit for divorce, and organizing our supporting documents.

1: Preparing, Filing Applications and Separation Agreement

First, one needs to obtain specific court forms. These can be found here. 

• Form 8A: Application (Divorce). This form requires detailed information about both parties and the marriage. 
• Form 36: Affidavit for Divorce, which states that the marriage has broken down.
• Form 6B: Affidavit of Service confirms that our spouse received the required documents.

Start with filing an Application for Divorce that sets out your claims from the separation. Court filings now occur online. Here is the link to the Ontario Government website about how to create an account and file. In a joint divorce, both spouses agree on key points and file the application together after signing the separation agreement.

2: Serving your spouse with the Divorce Papers

Once the court issues (puts the court seal and signs the Application, your spouse must be served with the Application. “Serving” in this case means arranging for a person to hand deliver the Application to your spouse. This is typically done by a process server. The Family Law Rules are clear that you may not be the person to serve your spouse with an Application for Divorce. The Affidavit of Service must then be sworn by the person who served the Application, and then the Affidavit of Service needs to be filed with the court.

3: Receiving the Answer and Financial Statement

Your spouse will have 30 days to file an answer. This Answer details what parts of our application they agree or disagree with and includes their own claims. If no response is received within 30 days, your divorce is deemed uncontested, and you can take steps to have the court grant the divorce.

4: Uncontested “Trial”, Divorce Order and Certificate

In order to obtain a divorce on an uncontested basis, the Affidavit for Divorce needs to be filed, along with a draft Divorce Order. Different regions have different processes to trigger the uncontested trial process. You will need to consult with a lawyer familiar with that region, contact the courthouse directly, or peruse the local Practice Notes (available here). Please note: these Practice Notes change regularly so you need to consult the most recent provincial and regional directions as things change.

Once you have triggered the uncontested trial process, the court will grant a Divorce Order. The time between triggering the uncontested trial process and receiving a copy of the Divorce Order varies by region. At Alves Law we expect the timeline to be at least 6 weeks in most cases, however we have seen faster turnarounds, and much longer (>1 year) delays.

After issuing the Divorce Order, you will need to request from the court your Divorce Certificate. You may request this 31 days after the Divorce Order was made. The Divorce Certificate is the formal proof that you are divorced.

Frequently Asked Questions

What are the requirements for a simple divorce application in Ontario?

For a simple divorce, one spouse files the application, and the other spouse does not contest it. You need to complete Form 8A and ensure the marriage has broken down irreparably. At least one spouse must have lived in Ontario for at least one year before filing.

What are the steps involved in a joint divorce filing in Ontario?

In a joint divorce filing, both spouses agree to the divorce and the terms. You will both need to complete and sign Form 8A, and submit it along with any other required documents. Both spouses must be in agreement on all related matters like property division, child support, and spousal support.