Divorce When Your Spouse Refuses to Sign in Ontario

It is common for one spouse to want a divorce while the other will not sign anything, ignores messages or says they will never agree. That can feel like a dead end, especially when you are hoping for a quick, calm process.

In most cases it is not a dead end. This article explains the difference between a joint and a single application, what the court needs to see, and what your spouse's refusal can and cannot change.

Do you need your spouse's signature to get divorced?

Either spouse may start a divorce case in Ontario. You can file an application naming your spouse as the respondent, or the two of you can file a joint application with no respondent.

The joint route is the one that depends on cooperation. In a joint application, the divorce and any other order can be made only with the consent of both spouses. If your spouse will not sign, the usual path is an application on your own, with your spouse served as the respondent.

The only ground for divorce under the federal Divorce Act is breakdown of the marriage. Your spouse cannot block the divorce simply by disagreeing that the marriage is over.

What you still have to show the court

Even when your spouse does nothing, a judge does not grant a divorce automatically. A few things must be in place.

• Breakdown of the marriage, usually shown by living separate and apart for at least one year before the divorce is decided, and being separated when the case started.
• Alternatively, proof that your spouse committed adultery or treated you with physical or mental cruelty that makes continued cohabitation intolerable, which does not require the one-year wait. In that case the court must also be satisfied that you have not condoned or connived at it, and living together again for 90 days or less, mainly to try to reconcile, is not condonation.
• A connection to Ontario: either spouse must have been habitually resident here for at least one year immediately before the case started.
• Reasonable arrangements for the support of any children of the marriage, and no collusion between the spouses.

Spouses can be treated as separated for a period when they lived apart and either one intended to live separately. That means you do not need your spouse to agree that you have separated. Some couples separate but keep living in the same house, and a lawyer can explain what courts may consider when deciding whether spouses are separated.

Serving the papers and waiting for a response

When your spouse is the respondent, the application must be specially served, and it must be served by someone other than you. Special service methods include leaving a copy with your spouse, mailing it with a Form 6 acknowledgment postcard that your spouse signs, or leaving a copy at their residence and mailing another copy. Documents are served before they are filed with the court, and proof of service is filed afterward.

Your spouse then has 30 days after being served to serve and file an answer. If they are served outside Canada and the United States, the time is 60 days. A refusal to sign anything does not stop this clock from running.

If your spouse answers and fights, or does nothing

If your spouse files an answer, the case becomes contested, and a judge must hold at least one conference. Contested cases can move through case conferences, settlement conferences and trial management steps, and a trial or focused hearing may be needed if issues remain.

If your spouse files nothing by the deadline and has not asked for more time, you can take steps toward an uncontested trial decided on your evidence alone. Our separate article on spouses who do not respond covers that process.

Parties to a Divorce Act proceeding must try to resolve matters through a family dispute resolution process where appropriate, such as negotiation, mediation or collaborative law. A spouse who refuses to sign a form may still be willing to talk through a mediator, though this will not suit every situation.

Money and property do not wait on the divorce

A simple divorce application is for divorce only, and no other claim, such as support or property, can be made in it. If your spouse is uncooperative about money, those issues need to be raised separately, and financial statements are used for them: Form 13 for support claims without property claims, and Form 13.1 for property claims.

Time limits matter. A property equalization claim must generally be brought by the earliest of two years after a divorce judgment, six years after separation with no reasonable prospect of resuming cohabitation, or six months after the first spouse's death, though a court can extend time in limited circumstances. Do not assume you can finish the divorce first and deal with property later without checking the dates.

What to do next

• Write down your separation date and any periods of living together again.
• Locate your marriage certificate, or note why getting one is impractical.
• Decide who can serve the papers, since it cannot be you.
• List your property, debts, pensions and RRSPs, since these are counted for equalization.
• Speak with a family lawyer about whether to combine property and support claims with the divorce.

Frequently asked questions