Written by Allison R. McAlpine
In Ontario, obtaining an uncontested divorce is fairly straightforward. Our office prepares these on a flat fee basis so long as they are in Barrie and the other party cooperates with service. Please contact our office for information about fees.
Before proceeding with a Divorce, you should ensure that you have either a separation agreement dealing with all of the other issues in your matter (e.g., child support, spousal support, custody, access, property division/equalization), or have included these claims in your divorce application. These claims should be dealt with prior to finalizing the Divorce. Further, you should ensure that proper child support arrangements have been made for any dependant child. You will have to prove to the Court that such arrangements have been made. If the Judge hearing the application decides that proper child support arrangements have not been made, then he or she can refuse to grant the divorce until such time as proper arrangements are made.
For the purposes of this article, we are assuming that all issues have been resolved between the spouses by way of separation agreement or court order except for the divorce.
There are three grounds for divorce in Canada:
1. You have been living separate apart for one year or more (i.e., separated for one year or more);
2. Your spouse has been physically or mentally cruel to you; and/or
3. Your spouse has committed adultery.
If you meet one or more of these grounds, you can proceed with a Divorce Application. Note, you can start a Divorce Application at any time after separation, but not finalize the Divorce until one of these events have occurred (e.g., until you have been separated for one year).
The steps to getting an uncontested Divorce are as follows:
1. Issue the Divorce Application. You can obtain a copy at Family Law Rules Forms and it is Form 8A. Fill out the Application, and ensure that the names of the parties match the names on the marriage certificate. Bring 3 copies of the Application signed by you to the Court Office along with your original marriage Certificate or marriage registration Certificate (in Ontario, you can order from the Office of the Registrar General in Thunder Bay 1-800-461-2156). The Court will assign the case a court file number and provide a Registration of Divorce Proceeding form to fill out (which is sent to the Federal Department of Justice to determine if the same spouses have registered any other divorce applications – the Divorce cannot be granted until a Clearance Certificate has been received). There is a fee for issuing.
2. You must serve the Application. A copy of the Application must be served on the other spouse. Check Rule 6 of the Family Law Rules with how to serve an Application. Basically – it can be done by personal service (an adult other than you personally serves the spouse), serving a lawyer that accepts service, or serving the documents by mail with an Acknowledge of Service (Form 6) to be returned. Once served, an Affidavit of Service (Form 6B) has to be sworn under oath by the person that served the document and filed at the court.
3. Wait 30 days. The other spouse has 30 days to respond.
4. Filing the Affidavit for Divorce. Once the 30 days has passed and the other party has not responded with an Answer (Form 10) then the Divorce can proceed. You must go to the Court Office and file the Affidavit for Divorce (Form 36). Make sure to attach any Minutes of Settlement or Separation Agreements, if applicable. You will have to file four copies of the draft Divorce Order (Form 25) along with a stamped envelope addressed to each party. There is a fee for filing.
5. The Court will issue the Divorce Order when a Judge has an opportunity to review the file and send it to the parties in the provided envelopes. The Divorce Order will take effect on the 31st day after the Divorce Order was granted. Thereafter, either of the parties can obtain the Certificate of Divorce from the Court as proof that the divorce is effective (Form 36B). There is a fee for obtaining this Certificate.
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