Divorce Affidavit in Ontario: What Goes in Form 36

If your divorce is not being fought, a judge usually decides it from the papers rather than from what you say in a courtroom. That makes your paperwork the whole case, and the affidavit is the most important piece of it.

A common mix-up is the form number. The affidavit is Form 36, called Affidavit for Divorce. Form 36A is something different: the Certificate of Clerk (Divorce). This article explains what the affidavit must cover, who swears it and what other documents go with it.

Why the affidavit matters

An uncontested divorce is decided on paper. 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 for this kind of divorce. Because the judge is relying on your written evidence, it is worth making the affidavit complete and accurate, since the judge may return the papers for correction.

What the affidavit must cover

The evidence in an uncontested divorce is the Form 36 affidavit, and the Family Law Rules say what it must contain.

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

The court must be satisfied that reasonable arrangements have been made to support any children of the marriage, and if they have not, it delays the divorce. So the child support section deserves care.

Who swears it

If you applied alone, the applicant files the affidavit when the respondent files no answer or withdraws the answer. In a joint application, the joint applicants file it, and Ontario's joint divorce checklist says each spouse completes a separate Form 36.

Either spouse may start a divorce by an application naming the other as respondent, or both may file a joint application with no respondent. In a joint application, the divorce and any other order can be made only with both spouses' consent.

What other documents go with it

The court will not grant a divorce until it has the 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 given in the Form 36 affidavit. A certificate that is not in English must be translated by a certified translator.

• Three copies of a draft Divorce Order (Form 25A) and stamped envelopes for each party.
• If support is included, an extra copy and two draft support deduction orders.
• A financial statement if you claim support or property: Form 13 for support without a property claim, Form 13.1 for any property claim.
• No financial statement if the only support claim is child support in the table amount, unless there is also a property claim or a claim for exclusive possession of the matrimonial home.

Financial statements must be sworn before a commissioner of oaths, and supporting financial documents must also be provided. If you later find a served financial document is wrong, you must correct or update it as soon as you find out.

What to do next

• Confirm you are using Form 36 for the affidavit, not Form 36A.
• Locate your marriage certificate, or be ready to explain in the affidavit why you do not have it.
• Gather details of any earlier marriage that ended by divorce or death.
• Settle the child support arrangements and financial information you will state.
• Prepare the draft Divorce Order and envelopes.
• Decide how you will file: Toronto filings go through the Ontario Courts Public Portal, and filings elsewhere go through Family Submissions Online.

Court fees include $214 to file an application and a separate federal $10 fee for a divorce claim. If you cannot afford the fees you can request a waiver, but the federal $10 fee cannot be waived. Because the affidavit is sworn evidence, a lawyer can help if your situation involves children, property or an earlier marriage.

Frequently asked questions