Do You Have to Go to Court for a Divorce in Ontario?

Many people picture a divorce as a dramatic day in a courtroom. In Ontario, that picture is often wrong. Whether you ever stand in front of a judge depends mostly on whether your spouse disputes anything.

This article explains the difference between an uncontested divorce, which is decided on paper, and a contested one, where conferences are part of the process. It also covers online filing, the information program, mediation and what happens after the judge signs the order.

Uncontested divorces are decided on paper

An uncontested divorce is decided on paper. The clerk prepares a Certificate of Clerk (Divorce), Form 36A, and presents the file to a judge. Rule 36 of the Family Law Rules does not require anyone to attend in person.

The judge may grant the divorce as drafted, return the papers for correction, or grant it with changes. The judge may also refuse it, but only after giving the applicant a chance to respond.

An uncontested divorce can be started by one spouse, who names the other as respondent, or by both spouses in 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 goes into the paper file

Because the judge decides from the documents, the documents carry the case. The usual items are:

• The Application (Divorce), Form 8A.
• An Affidavit for Divorce, Form 36, which confirms the application, proves the marriage if no certificate is filed, and gives child support arrangements and financial information.
• The marriage certificate and a report from the Central Registry of Divorce Proceedings on any earlier divorce cases. The court will not grant the divorce without them.
• Three copies of a draft Divorce Order, Form 25A, and stamped envelopes for each party.

If you have no marriage certificate, the court can still grant the divorce if it accepts the explanation in your Form 36 affidavit. A certificate that is not in English must be translated by a certified translator.

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

Filing online and where the case is heard

A simple or joint divorce can be filed online. Toronto filings go through the Ontario Courts Public Portal, and filings elsewhere go through Family Submissions Online. Court staff review submissions within 3 business days.

Only the Superior Court of Justice, including its Family Court branch, deals with divorce and property claims. The court must also be satisfied that reasonable arrangements are in place for any children's support, or it delays the divorce.

When the case is contested

If the other spouse disagrees, the case changes. 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.

Once an answer is filed, a judge must hold at least one conference, subject to some exceptions in the rules. A case cannot be scheduled for trial unless a settlement conference has been held or a judge has ordered trial scheduling.

The parties attend these conferences. 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.

Where appropriate, parties must try to resolve their issues through a process such as mediation. On-site mediation is free on the day a matter is scheduled in court. Each party should get advice from a different lawyer before signing a mediated agreement so that it is legally binding.

After the judge decides

A divorce takes effect on the 31st day after the day the judgment granting it is made. The court can make it take effect earlier only if special circumstances justify it and both spouses agree and undertake not to appeal. A pending appeal delays when the divorce takes effect.

Once the divorce takes effect, the clerk issues a Certificate of Divorce, Form 36B, at either party's request, after checking that no appeal is pending. It costs $25. You can request it online with an Ontario.ca Login, in person or by mail, and you need the court location, the court file number and the year the divorce was granted. You do not need to attend court to get it.

What to do next

• Find out whether your spouse agrees to the divorce and to the terms for children and money.
• Gather your marriage certificate and details of any earlier divorce.
• Decide whether a simple or joint application suits your situation.
• Check the filing route for your courthouse: the Ontario Courts Public Portal for Toronto, or Family Submissions Online elsewhere.
• Speak with a lawyer if support, property or parenting is disputed, because those issues can lead to conferences.

How long a case takes varies by courthouse and by how much is in dispute. A lawyer can help you judge which path fits your facts.

Frequently asked questions