Setting Aside a Divorce Order in Ontario: When Is It Possible?

Sometimes a person looks at a final divorce order and wants it changed or undone. They may not have understood what was happening, or the order may not reflect what was agreed. The options are narrow, and the clock starts running when the order is made.

This article explains the deadlines the rules set, what the court had to be satisfied of before it granted the divorce, and how the other parts of your family law case may still be open. Whether a particular order can be challenged depends on the facts, so a lawyer should review it.

The deadlines that start with the order

A divorce takes effect on the 31st day after the day the judgment granting it is made. As an exception to that 31-day rule, the court can make the divorce take effect earlier if special circumstances justify it and both spouses agree and undertake not to appeal. 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.

A pending appeal delays when the divorce takes effect. After the divorce takes effect, it ends the marriage and has legal effect throughout Canada.

In practice, the time to act is short. If you disagree with an order, read the date it was made and confirm your options straight away.

What the court had to be satisfied of

Understanding what a judge checks helps you see whether something went wrong. Before granting a divorce, the court must be satisfied of several things:

• There is no possibility the spouses will reconcile.
• Reasonable arrangements have been made to support any children of the marriage.
• There was no collusion and, on fault grounds, no condonation or connivance by the spouse who started the case.
• The court has jurisdiction, which requires that either spouse was habitually resident in Ontario for at least one year immediately before the proceeding started.

An uncontested divorce is decided on paper. 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.

Changing your mind before the order

If the order has not been made yet, you may have an easier option. A party may withdraw all or part of an application, answer or reply by serving a Notice of Withdrawal (Form 12). The withdrawing party must pay every other party's costs up to the withdrawal date, unless the court orders or the parties agree otherwise.

The application, answer or reply of a special party or a child party can be withdrawn only with the court's permission.

Challenging an order versus dealing with other claims

Often the real concern is not the divorce itself but money, property or parenting. Those issues may be dealt with separately. For example, an equalization claim must be started by the earliest of 2 years after the divorce, 6 years after separation with no reasonable prospect of living together again, or 6 months after the first spouse's death.

Whether an order can be set aside or changed after the appeal period depends on the circumstances and the wording of the order. A lawyer can confirm which route, if any, fits your situation.

What to do next

• Find the date the order was made and count forward to the 30-day appeal deadline.
• Ask the court whether any appeal is pending, since a pending appeal delays when the divorce takes effect.
• Collect the application, any affidavit, the order and any agreements.
• Write down exactly what you believe was wrong or missing, such as child support arrangements or disclosure.
• Speak to a lawyer promptly, since an appellate court can extend the appeal time only on special grounds.
• Do not plan to remarry until you have confirmed the divorce is final.

Frequently asked questions