What Is a Contested Divorce in Ontario and How Does It Proceed?

If your spouse does not agree with what you are asking for, or with the divorce itself, you may be heading toward a contested divorce. That can sound alarming, but it is mostly a description of how the court process runs when issues are in dispute.

This article explains what contested means in Ontario, the stages a case usually moves through, and what you can do to keep the process manageable. Every family situation is different, so use it as a map and not as advice on your own case.

What makes a divorce contested

In plain terms, a divorce is contested when the spouse who was served files an answer instead of simply letting the case go ahead. Once an answer is filed, a judge must hold at least one conference in the case. A conference is a meeting where a judge or Dispute Resolution Officer meets the parties.

A case can be contested over the divorce itself, or over related issues such as support, parenting or property. A simple divorce application is for divorce only, so no other claim such as support or property can be made in it.

What still has to be shown

The only ground for divorce under the Divorce Act is breakdown of the marriage. That is usually shown by living separate and apart for at least one year before the divorce is decided, and being separate when the case started. Breakdown is also shown if the other spouse has committed adultery or treated you with physical or mental cruelty that makes continued cohabitation intolerable.

Spouses can be treated as separate even while sharing a home in some situations, but courts look at this case by case, so a lawyer can explain how it applies to you. A short try at reconciling does not necessarily restart the clock: living together for periods totalling no more than 90 days, mainly to reconcile, does not interrupt the one-year period.

The stages of a contested case

• Start: one spouse files an application and serves it on the other, who must be served by someone other than the party who has to serve it.
• Answer: the respondent has 30 days after service to serve and file an answer, or 60 days if served outside Canada and the United States.
• Information program: most parties must attend a Mandatory Information Program no later than 45 days after the case is started.
• Conferences: contested cases move through case conferences, settlement conferences, and trial scheduling and trial management conferences.
• Motions: except in urgent situations, a motion generally cannot be brought until a case conference has been held.
• Trial or focused hearing: if issues are still unresolved, one may be needed.

If the respondent does not answer by the deadline and has not asked for more time, the applicant can take steps toward an uncontested trial decided on the applicant's evidence alone.

Money, property and children

Financial disputes usually mean each side has to set out their income, assets and debts, and the form depends on what is being claimed. Form 13 is used for support claims without property claims, and Form 13.1 is used for property claims, with or without support.

Before granting a divorce, the court must be satisfied that reasonable arrangements have been made for the support of any children of the marriage. On property, the spouse with the smaller net family property is generally entitled to half the difference between the two. A court may award more or less than half if equalizing would be unconscionable.

Trying to resolve it outside court

Parties to a Divorce Act proceeding must try to resolve matters through a family dispute resolution process where appropriate. That includes negotiation, mediation and collaborative law. A lawyer acting for a spouse must also discuss reconciliation and encourage the use of these processes unless that is clearly inappropriate.

Settlements can be put in a separation agreement. It is unenforceable unless it is in writing, signed and witnessed.

What to do next

• Write down the date you separated and any periods of living together again.
• Collect financial records, including pensions and RRSPs, which count as property.
• Note the date you were served, and calendar the 30 or 60 day answer deadline.
• Think about which issues are truly disputed and which might be settled.
• Speak with a family lawyer about your options before filing or answering.

Frequently asked questions