Separation and Divorce
Spouses are considered separated when they have started living separately from each other with no reasonable prospect of reconciliation. This often means that one party has moved out of the family home. Spouses can, however, be considered separated even if they continue to live in the same house together.
A divorce is the legal dissolution of a marriage that happens after parties have already separated. Only the Court can grant a divorce.
What are the grounds for divorce?
In Canada, there are three grounds for divorce:
- You and your spouse have lived separate and apart for one year and there is no chance of reconciliation;
- Your spouse has committed adultery; or
- Your spouse has been physically or mentally cruel to you such that living together is intolerable.
Most often spouses will rely on the one-year separation to get a divorce.
Do you need a separation agreement before divorce in Ontario?
Separation agreements are important tools used to outline a parenting plan for your children, payment of support, and what will happen to your property. They can also provide important release clauses waiving spousal rights to share in each other’s estate.
You are not required to sign a separation agreement before applying for a divorce. If there are no issues between you and your spouse regarding custody, access, child support, spousal support, or property division, then a separation agreement is not required before applying for divorce. It is, however, important to obtain legal advice to determine if your issues warrant a separation agreement. Alternatively, if you and your spouse agree on all issues, you can jointly apply for a divorce without completing a separation agreement. Where there are issues relating to parenting, support, and property division, a separation agreement simplifies the divorce process.
How do you file for divorce in Ontario?
To file for divorce in Ontario, you must have been ordinarily resident here for one year. If you have been residing in Ontario for over a year and can establish one of the grounds for divorce, the first step is to file an Application with the Court. The Application gives the Court background information on you and your spouse, and outlines to the Court what it is you will be asking them to grant. The Application is not solely restricted to divorce. If you are making claims for custody, access, child support, spousal support and property division, these claims are also included in your Application.
If you intend to rely upon the fact that you and your spouse have lived apart for a year to obtain a divorce, you are not required to wait a year before bringing an Application before the Court to deal with matters involving support, children, or division of property. The divorce just can’t be granted before a year is up.
An Application for divorce can be filled out by one or both spouses. It is most often completed by one spouse, but if you agree on things like custody, access, support and property division you can file together.
Unless you file your Application together, you are required to serve your Application on your spouse. This means that your Application is completed without input by your spouse, and is then delivered to them. Your spouse then has 30 days to respond. If they do not respond, the Court may grant everything requested without hearing from your spouse.
If, after 30 days, your spouse has not responded to your Application the next step is to file paperwork asking the Court to go ahead and grant the divorce.
When spouses have signed a separation agreement, this part of the process is simplified, and a divorce can usually be obtained without having to attend in Court. The spouse applying for a divorce files the necessary forms with the court and attaches a copy of the separation agreement signed by both parties to show all issues have been resolved. Once submitted, a Judge will review the application materials, confirm an agreement has been reached, and grant the divorce. In most circumstances, the divorce will be granted without issue and without anyone attending.
If you have not reached an agreement with your spouse and your spouse has not responded to your application, then you will need to ask the Court to proceed without your spouse and set a date to appear in front of a Judge for an uncontested trial. At an uncontested trial, a Judge can make an order as to what will happen with parenting, support and property. A Judge can also grant the divorce.
If you and your spouse cannot come to an agreement on the issues of custody, access, child support, spousal support or property division, you may have to go to court to have a Judge make a decision on those issues before proceeding with your application for divorce.
Disclaimer: The information contained on this page is only intended for information purposes and is not intended to be construed as legal advice. Speak to one of our family law lawyers if you have any questions about separation and divorce.