- A divorce does not need your spouse's signature or cooperation if you start the case by application and serve it properly.
- A respondent generally has 30 days after being served to file an answer, and 60 days if served outside Canada and the United States.
- If no answer is filed, you can take steps toward an uncontested trial decided on your evidence alone.
You filed for divorce, or you are about to, and your spouse is ignoring the papers. Maybe they refuse to sign anything, or they have simply gone silent. It is natural to worry that the whole process is stuck.
In most cases it is not. In Ontario, one spouse can start a divorce without the other's agreement. This article explains what happens when a spouse does not respond, what you still have to do, and where a lawyer can help.
Why you do not need your spouse's signature
Either spouse may start a divorce case. You can file an application that names your spouse as the respondent, or both spouses can file a joint application with no respondent. A joint application is the route that needs cooperation, because the divorce and any other order can be made only with the consent of both spouses.
If your spouse will not sign, the usual path is to file your own application and serve it on them. Your spouse's signature is not a ground for divorce under the Divorce Act, because the only ground is breakdown of the marriage. The ground is still breakdown of the marriage, which is generally shown by living separate and apart for at least one year.
A simple divorce application is for divorce only. No other claim, such as support or property, can be made in it. If you also need those issues decided, a lawyer can explain how that changes the type of case.
Serving the application properly
Ignoring papers only counts against your spouse if they were properly served. An application must be specially served, and it must be done by someone other than the party who has to serve it. That means you cannot hand the papers over yourself.
- Leaving a copy with the person.
- Mail with a signed Form 6 acknowledgment postcard.
- Leaving a copy at the residence and mailing another copy.
Documents must be served before they are filed with the court, and proof of service must then be filed. Keep careful records of who served what, when and how.
The answer deadline and what happens if it passes
A respondent must serve and file an answer within 30 days after being served with the application. If they were served outside Canada and the United States, the time is 60 days.
If the respondent does not answer by the deadline and has not asked for more time, you can take steps toward an uncontested trial, decided on your evidence alone. When no answer is filed, the court may also deal with the case in that party's absence.
If your spouse does file an answer, the case becomes contested, and a judge must hold at least one conference. Contested cases can move through case conferences, settlement conferences and trial scheduling steps.
What the court still needs from you
An unanswered case is not automatic. The court cannot grant a divorce until a marriage certificate or marriage registration certificate is filed, unless your application explains why it is impractical to file one. It also needs a report on earlier divorce cases started by either spouse.
If the respondent files no answer, the applicant files an affidavit in Form 36. The court must also be satisfied that reasonable arrangements have been made for the support of any children of the marriage.
Once the judgment is made, the divorce generally takes effect on the 31st day after the day it is made. The court may order it to take effect earlier if special circumstances justify it and the spouses agree and undertake that no appeal will be taken, or any appeal has been abandoned. Either party can then ask the clerk to check the record for appeals and issue a divorce certificate in Form 36B.
What to do next
- Confirm you meet the one-year separation or other ground, and that one spouse has lived in Ontario for at least one year.
- Gather your marriage certificate and details of any earlier divorce proceedings.
- Arrange for someone other than you to serve the application, and keep proof.
- Note the answer deadline and mark it on a calendar.
- Speak with a lawyer if your spouse is outside the country, or if children, support or property are involved.
Frequently asked questions
Can I get a divorce if my spouse refuses to sign?
It may be possible, depending on your situation. Either spouse may start a divorce by application and name the other as respondent. You still need a ground, which is breakdown of the marriage, and either spouse must have been habitually resident in Ontario for at least one year before the case starts. Only a joint application requires both spouses' consent.
How long does my spouse have to respond?
A respondent must serve and file an answer within 30 days after being served. If they were served outside Canada and the United States, the period is 60 days.
What if my spouse files an answer but then does nothing?
Once an answer is filed, the case is contested and a judge must hold at least one conference. What happens next depends on the issues and the steps taken, so it is worth getting advice.
Do I still have to prove anything if my spouse ignores the case?
Yes. You file an affidavit in Form 36, and the court must still be satisfied about matters such as reasonable support arrangements for children. The case is decided on your evidence, so accuracy matters.
Sources
- Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 8 — Justice Laws (federal)
- Divorce Act, s. 3(1) — Justice Laws (federal)
- Divorce Act, s. 11(1) — Justice Laws (federal)
- Family Law Rules, O. Reg. 114/99, r. 36(1) — Ontario e-Laws
- Superior Court of Justice – The Steps in a Family Case — ontariocourts.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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