Divorce With Children in Ontario: Steps the Court Requires

If you are divorcing and have children, you may worry that the court will want to examine your parenting in detail before it ends your marriage. In an uncontested case, the court's focus is narrower. It wants to see that the children are provided for, and it looks at that mostly through the paperwork you file.

This article walks through what the court needs to see about children, the documents that carry that information, and what happens after the judgment. It is general information about Ontario, not advice on your own file.

What the court must be satisfied about

Before a divorce is granted, the court must be satisfied that reasonable arrangements have been made to support any children of the marriage. If they have not, it delays the divorce.

The court also has to be satisfied that there was no collusion, and, where a divorce is based on adultery or cruelty, no condonation or connivance by the spouse who started the case. And it must be satisfied there is no possibility the spouses will reconcile. If reconciliation seems possible at any stage, it can adjourn the case so you can try.

Only the Superior Court of Justice, including its Family Court branch, deals with divorce. Either spouse must have been habitually resident in Ontario for at least one year immediately before the case is started.

The documents that show your child arrangements

A case starts with an application (Form 8A, Application (Divorce)). One spouse can file it and name the other as respondent, or both spouses can file a joint application. In a joint application, the divorce and any other order can be made only with both spouses' consent.

In an uncontested divorce, the evidence is an affidavit on Form 36 (Affidavit for Divorce). It must give the child support arrangements and financial information, along with the other information the court needs to grant the divorce. In a joint application, each spouse completes a separate Form 36.

• The marriage certificate (or marriage registration certificate) and a Central Registry of Divorce Proceedings report 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 your Form 36 affidavit, and 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 of the draft order and two draft support deduction orders.
• A financial statement if you claim property, exclusive possession of the matrimonial home, or support other than table child support alone. Consent claims for spousal support under the Divorce Act are exempt.

If the only support claim is child support in the table amount, no financial statement is needed, 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 documents must also be provided.

Parenting decisions and the best interests of the child

Support is only part of the picture. If parenting is part of your case, the court considers only the child's best interests and gives primary consideration to the child's physical, emotional and psychological safety, security and well-being.

A parenting plan is not required. If you submit one, the court must include it in the parenting order, unless that is not in the child's best interests, in which case it can modify the plan.

If a parent with parenting time or decision-making responsibility plans to relocate, they must give at least 60 days' notice, in the prescribed form, to anyone else with parenting time, decision-making responsibility or contact. Where appropriate, parties must also try to resolve their issues through a process such as mediation, and lawyers must encourage this.

Uncontested versus contested cases

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.

If the other spouse files an answer, the case is contested. A respondent served in Canada or the US has 30 days to serve and file an answer, and a respondent served elsewhere has 60 days. A judge must then hold at least one conference, subject to some exceptions. A case conference explores settlement and identifies what is and is not in dispute, and a settlement conference aims to settle or narrow the disputed issues.

Most parties in family cases must also attend the free Mandatory Information Program, which covers the court process, dispute resolution options and the effects of separation on children and adults.

Fees, timing and what comes after

Superior Court fees are $214 to file an application, $171 to file an answer ($214 if the answer asks for a divorce), and $445 to place an application on the list for hearing. A separate federal $10 fee applies to any application or answer with a divorce claim. If you cannot afford the fees you can request a waiver, but the $10 divorce fee cannot be waived.

How long a case takes from filing to judgment varies by courthouse, so it is worth confirming local timing with the court or a lawyer. The periods set by law are different. A divorce takes effect on the 31st day after the judgment is made. 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, and a pending appeal delays when the divorce takes effect.

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.

What to do next

• Gather your marriage certificate and details of any earlier divorce.
• Write down the child support arrangements you have agreed or propose, and the parenting arrangements if they are part of your case.
• Work out whether you need a financial statement or only a table child support claim.
• Decide whether you will file jointly or by application, and which court location applies.
• Speak with a lawyer if there is any disagreement about the children, money or the home.

Frequently asked questions