Contested Divorce in Ontario: What Happens and What to Expect

If you and your spouse disagree about property, support or children, your divorce may go through the court's contested process. That can feel uncertain, especially if you have never been to court.

This article walks through the usual stages in Ontario's Superior Court of Justice. Every case is different, so treat it as a general map and not a timetable.

Starting the case and serving your spouse

Either spouse may start a divorce case by filing an application naming the other spouse as respondent. A family case starts in the municipality where a party lives, subject to the Courts of Justice Act. The court fee to file an application is $214, and there is a separate $10 divorce filing fee for the federal Central Registry of Divorce Proceedings that cannot be waived.

The application must be specially served, by someone other than the party who has to serve it. Methods include leaving a copy with the person, or mail with a signed Form 6 acknowledgment postcard. Documents are served before they are filed, and proof of service is then filed.

If a spouse cannot be served in the usual way, the court may order substituted service by a method it chooses. Where reasonable efforts to locate the person have failed and no substituted method is likely to work, the court may order that service is not required.

The answer: when a case becomes contested

A respondent must serve and file an answer within 30 days after being served with the application. If the respondent is served outside Canada and the United States, the time is 60 days. The fee to file an answer is $171, or $214 if it includes the respondent's own request for a divorce.

If the respondent does not answer by the deadline and has not asked for more time, the applicant can take steps toward an uncontested trial, decided on the applicant's evidence alone.

Conferences, disclosure and trial

In each case where an answer is filed, a judge must hold at least one conference, where a judge or Dispute Resolution Officer meets the parties. Contested cases move through case conferences, settlement conferences, and trial scheduling and trial management conferences. If issues are still unresolved, a trial or focused hearing may be needed.

Except in urgent situations, a motion generally cannot be brought until a case conference has been held. Fees apply along the way, including $445 to place an application on the list for hearing.

Financial statements are part of the process. Form 13 is used for support claims without property claims, and Form 13.1 is used for property claims, with or without support.

What the court must be satisfied of

The only ground for divorce under the Divorce Act is breakdown of the marriage. It is shown if the spouses have lived separate and apart for at least one year before the divorce is decided and were living separate and apart when the proceeding started. The exception is where the spouse the proceeding is against has committed adultery or treated the other spouse with physical or mental cruelty that makes continued cohabitation intolerable. Living together again for periods totalling no more than 90 days, mainly to try to reconcile, does not interrupt the one-year period.

An Ontario court can hear a divorce if either spouse has been habitually resident in Ontario for at least one year immediately before the proceeding starts. Before granting a divorce, the court also looks at a few things:

• It must be satisfied there is no possibility of the spouses reconciling, unless it would clearly be inappropriate to consider this.
• It must be satisfied there has been no collusion and that reasonable arrangements have been made for the support of any children of the marriage.
• Where the divorce is based on adultery or cruelty, it must also be satisfied that the spouse bringing the proceeding has not condoned or connived at it, and living together again for 90 days or less, mainly to reconcile, is not condonation.
• A divorce takes effect on the 31st day after the judgment is made, although the court may order an earlier date if special circumstances justify it and the spouses agree and undertake that no appeal will be taken.

Property is usually part of a contested case. The spouse whose net family property is smaller is entitled to one-half of the difference between the two spouses' net family properties. The court may award more or less than half if equalizing would be unconscionable. How this applies to you depends on your situation, so it is worth confirming with a lawyer.

Settlement efforts and early requirements

• Most parties must attend a Mandatory Information Program no later than 45 days after the case is started.
• Parties must try to resolve matters through a family dispute resolution process where appropriate.
• That process is outside court and includes negotiation, mediation and collaborative law.
• A lawyer acting for a spouse must discuss reconciliation and encourage family dispute resolution unless clearly inappropriate.

Settling some or all issues can narrow what a judge has to decide, which often saves time and stress.

What to do next

• Gather your marriage certificate, financial records and a list of property and debts.
• Note the date you were served and count your deadline for an answer.
• Register for the Mandatory Information Program early.
• Consider mediation or negotiation alongside the court process.
• Speak with a family lawyer before you file or respond.

Frequently asked questions