Getting Divorced in Ontario When Your Spouse Is Incarcerated

Finding out your spouse is incarcerated doesn't change your right to divorce them — but it does change some of the practical mechanics. You still need to prove the marriage has broken down, you still need to formally serve your spouse with the application, and you still need the court satisfied that arrangements for any children are reasonable. This guide explains how those steps actually work when the other spouse is in custody.

The Grounds for Divorce Don't Change

The Divorce Act requires proof that the marriage has broken down, most commonly shown by living separate and apart for the required minimum period. Incarceration doesn't create a special ground of its own, but if you and your spouse have been living apart because one of you is in custody, that period of separation counts the same way any other separation does — the law looks at the fact of living separate and apart, not the reason behind it.

You'll still need to satisfy the court that:

• The marriage has broken down under one of the recognized grounds
• You meet the residency requirement for the province where you're applying
• Reasonable arrangements have been made for the support of any children of the marriage

Serving Divorce Papers on an Incarcerated Spouse

Formal service — making sure your spouse legally receives the application — is required in every divorce, and an incarcerated spouse is no exception. In practice this usually means:

1. Confirm the facility. You'll need to know where your spouse is being held to arrange service there.
2. Arrange service through the facility. Correctional institutions have their own procedures for accepting documents for someone in custody, whether by mail with proof of delivery or personal service by someone who attends in person — check with the specific facility.
3. Keep proof of service. Whoever serves the documents typically needs to file an affidavit of service confirming how and when the papers were delivered.
4. Ask the court for alternative service if needed. Where standard service genuinely isn't practical, the Family Law Rules allow a party to ask a judge for an order permitting an alternative method the court considers likely to actually give notice — such as service on institution staff or by another specified means.

If you don't know which facility your spouse is in, or service becomes genuinely impossible, talk to a lawyer early. Proceeding without proper service — or without a court order excusing it — can delay or derail your application.

What Happens If Your Spouse Doesn't Respond

An incarcerated spouse who doesn't file a response isn't unusual, and it doesn't stop your case. Once service is proven and the response period has passed without an answer, many divorces proceed on an uncontested basis, with a judge reviewing the paperwork rather than holding a full hearing. The court still needs to be satisfied on all the usual requirements before granting the divorce — an unanswered application isn't an automatic order.

Corollary Matters Still Apply

Incarceration doesn't remove a parent's legal relationship with their children. Decision-making responsibility, parenting time, contact, and child support can all still be addressed as part of the case, and the best-interests-of-the-child test still governs any parenting order — a parent's circumstances, including incarceration, are simply one factor considered as part of that broader analysis. Support obligations don't disappear because a payor is incarcerated, though enforceability in practice may look different, and that's a separate conversation with your lawyer.

Court Fees Still Apply

Filing a divorce application at the Superior Court of Justice carries a court fee — as of mid-2026, $214.00 for filing the Application, plus a small federal fee (around $10.00) added to every Canadian divorce application. These figures are set by regulation and adjusted periodically, so verify the current amounts with the court before filing.

Frequently asked questions