Affidavit for Divorce (Form 36) in Ontario: What It Must Include

If your divorce is not being fought, a judge usually decides it from the papers alone. The most important paper is the Affidavit for Divorce, which is Form 36. It is your sworn evidence, so what you write in it matters.

Form numbers in a divorce are easy to mix up. Form 36 is the affidavit, Form 36A is the clerk's certificate to the judge, and Form 36B is the certificate of divorce you get at the end. This article walks through each step in plain language.

Who swears the Form 36 affidavit

The person who files the affidavit depends on how the case started. If one spouse applied and the other spouse files no answer, or withdraws an answer, the applicant files the affidavit. In a joint application, the joint applicants file it, and Ontario's joint divorce checklist says each spouse completes a separate Form 36.

A joint application is one where both spouses apply and there is no respondent. In that case, the divorce and any other order can be made only with both spouses' consent. The application itself is Form 8A, Application (Divorce).

What the affidavit must cover

The rules set out what the affidavit has to contain. Read your application beside the affidavit so the two match.

• Confirmation of the information in the application.
• Proof of the marriage, if no marriage certificate is filed.
• Proof of any earlier divorce, or the death of a spouse, if that applies to either of you.
• The child support arrangements, and financial information.
• Any other information necessary for the court to grant the divorce.

If child support or other financial claims are part of your case, think about whether a financial statement is also needed. Anyone claiming support or property must generally serve and file one, with some exceptions such as a claim only for table child support. A lawyer can confirm what applies to you.

Explaining a missing marriage certificate

The court will not grant a divorce until it has your marriage certificate (or marriage registration certificate) and a report from the Central Registry of Divorce Proceedings on any earlier divorce cases.

If you do not have the original marriage certificate, the court can still grant the divorce if it accepts the explanation you give in the Form 36 affidavit. Say plainly why you cannot get it, what you tried, and give the details of the marriage. If a certificate is not in English, it must be translated by a certified translator.

What is filed with the affidavit

• The marriage certificate, or your explanation in the affidavit if you do not have it.
• The Central Registry of Divorce Proceedings report.
• Three copies of a draft Divorce Order (Form 25A).
• Stamped envelopes for each party.
• If support is included, one extra copy of the draft order and two draft support deduction orders.

Filing can be done online for a simple or joint divorce. Toronto filings go through the Ontario Courts Public Portal, and filings elsewhere go through Family Submissions Online. Court staff review submissions within 3 business days, which is a review of the submission and not a time to your divorce order. Court fees are set by regulation (O. Reg. 417/95), so check the current amounts before filing.

What the judge must be satisfied of

Before considering the evidence, the court must be satisfied that there is no possibility the spouses will reconcile. If reconciliation seems possible at any stage, it can adjourn the case so you can try.

The court must also be satisfied that reasonable arrangements have been made to support any children of the marriage. If they have not, the divorce is delayed. It must be satisfied there was no collusion, and on fault grounds, no condonation or connivance by the spouse who started the case.

The paper review works like this: the clerk prepares a Certificate of Clerk (Divorce), Form 36A, and presents the file to a judge. The judge may grant the divorce as drafted, return the papers for correction, or grant it with changes or refuse it after giving the applicant a chance to respond. Rule 36 does not require anyone to attend in person. Timelines vary by courthouse, so no fixed time can be promised.

After the order: what to do next

Ontario's court guide says the divorce order will state that the divorce is effective 31 days after the order was made. Generally, a divorce takes effect on the 31st day after the judgment is made. The court can make it take effect earlier only if special circumstances justify it and both spouses agree and undertake not to appeal. A pending appeal delays the effective date, and no appeal may be brought more than 30 days after the order was made, although an appellate court can extend that time on special grounds.

Once the divorce takes effect, the clerk will issue a Certificate of Divorce, Form 36B, at either party's request, after checking that no appeal is pending. It costs $25, and you can request it online with an Ontario.ca Login, in person or by mail, with the court location, court file number and year the divorce was granted. You will need it or other proof of divorce to get a marriage licence in Ontario after a divorce granted in Canada.

• Check that your affidavit matches your application before swearing it.
• Gather the marriage certificate and any translations early.
• After the divorce, review your will, since a divorce revokes gifts to a former spouse unless the will shows a contrary intention.
• Update insurance and RRSP beneficiary designations; a lawyer can confirm how divorce affects them.

Frequently asked questions