Noting in Default in an Ontario Divorce: What It Means

You served your spouse with the divorce application weeks ago, and there's been silence. No response, no lawyer, nothing. It's a frustrating position — but it's also one Ontario's family court system anticipated. The tool it provides is called noting in default, and understanding how it works can turn an indefinite standstill into forward motion.

Noting in default is a procedural step under the Family Law Rules, the regulation that governs how family cases move through Ontario's courts. It doesn't punish the non-responding spouse in any dramatic sense — it simply reflects the fact that they didn't exercise their right to respond within the time they were given, and lets the case proceed accordingly.

What Noting in Default Actually Means

When you start a family court case — a divorce application, for example — the person you're proceeding against (the respondent) has a defined window to file an Answer after being properly served. If they don't file anything within that time, you can ask the court to note them in default.

Once that happens:

• The respondent is treated as not having disputed the claims made against them in the application, for the purposes of moving the case forward.
• They generally lose the right to participate in further steps of the case unless and until the default is set aside.
• The case is no longer stuck waiting on a response that isn't coming — you can generally take the next procedural steps toward resolving it.

Importantly, this is a procedural mechanism, not a rubber stamp. The court still has to be satisfied that the underlying legal requirements are met before it grants relief like a divorce — including, in a divorce case, that reasonable arrangements have been made for the support of any children of the marriage.

When It's Used

Noting in default typically comes up when:

• A spouse was properly served with a divorce application and simply never responds
• A spouse initially engages but then stops participating and misses the deadline for a required step
• One party is deliberately avoiding the process, hoping inaction will stall things indefinitely

It is specific to the person who failed to respond — it doesn't automatically apply to every issue in a case if that person did respond to some parts but not others.

The Process, Step by Step

1. Confirm proper service

Before you can note someone in default, you need to be able to show the court that they were properly served with the application, using an accepted method of service, and that the response window has passed.

2. Request the noting in default

Your lawyer prepares and files the paperwork asking the court (or the registrar, depending on the step) to formally note the respondent in default.

3. The case proceeds without their input on the noted issues

Once noted in default, the matter can move toward the next steps — which, depending on the case, might mean scheduling an uncontested divorce for a judge's review, or moving other relief forward.

4. The court still checks the substance

Even without a response from the other side, the judge reviewing the file confirms that the legal ground for divorce is established, service was proper, and any required child support arrangements are reasonable, before granting anything.

Can Noting in Default Be Undone?

Yes, in some circumstances. A respondent who was noted in default can, in some cases, apply to have that status set aside — for example, if they can show a genuine reason they missed the deadline and that they have something meaningful to contribute to the case. Whether that request succeeds depends heavily on the specific facts and timing, and it's not something either side should assume will (or won't) happen.

What Noting in Default Does Not Do

• It doesn't automatically grant the divorce or any other relief. The court still needs to be satisfied the legal requirements are met.
• It doesn't waive the requirement to properly serve the other spouse. If service was defective, noting in default generally isn't available or can be challenged later.
• It doesn't necessarily resolve every issue in the case. A spouse might be noted in default on the divorce claim while a related issue is still being sorted out, depending on how the case was structured.
• It doesn't mean the non-responding spouse loses all rights forever. Setting aside a default is possible in the right circumstances.

Frequently asked questions