When Does an Ontario Divorce Become Final?

A judge has signed your divorce order, and you may be wondering whether you are now divorced or whether something else is still to come. The answer is that there is a waiting period before the divorce becomes final.

This article explains the 31-day wait, how to get your divorce certificate, when remarriage becomes possible, and what other things to check after the divorce takes effect.

The 31-day rule

Under the Divorce Act, a divorce takes effect on the 31st day after the day the judgment granting it is made. The judgment is the order that grants the divorce, and the effective date is the day your marriage legally ends.

Before it grants a divorce, the court must satisfy itself that there has been no collusion and that reasonable arrangements have been made for the support of any children of the marriage. Once the judgment is made, the 31-day count begins.

The wait gives time for an appeal to be started. Before a certificate is issued, the clerk checks the record for appeals if either party asks.

Can the wait be shortened?

Sometimes. The court may order that the divorce take effect before the 31st day if special circumstances justify it, and the spouses agree and undertake that no appeal will be taken, or any appeal has been abandoned. This is an exception, and a lawyer can tell you whether your reasons are likely to qualify.

If you are hoping for an earlier date, both spouses need to be on the same page, because the exception depends on agreement and an undertaking that no appeal will be taken. Whether your reasons count as special circumstances depends on your facts.

Getting your divorce certificate

A certificate that the divorce dissolved the marriage is issued on request. In Ontario, once the divorce takes effect, the clerk checks the record for appeals at either party's request, and if satisfied, issues a divorce certificate in Form 36B.

Keep the certificate somewhere safe. You may be asked for it when changing records, dealing with pensions or other financial institutions, or applying to marry again.

Remarriage and what else changes

Marriage requires the free and enlightened consent of two persons, and no one may marry until every previous marriage has been dissolved. A divorce dissolves the marriage only once it takes effect. So the practical answer is that you should not plan a new marriage before the divorce is effective, and you should have your certificate ready.

Other things to look at once the divorce is effective:

• Your will. Unless the will shows a contrary intention, a divorce made after the will is signed revokes gifts to your former spouse and their appointment as executor or trustee, and the will is read as if the former spouse died before you. The rest of the will remains valid. You may still want to update it.
• Property claims. An equalization claim has a limitation period that includes two years after a divorce judgment. The court can extend time in limited circumstances.
• Pensions. CPP contributions made while spouses lived together can be split equally after a divorce, and for divorces on or after January 1, 1987, the spouses must have lived together for at least 12 consecutive months.
• RRSPs. Funds can be transferred without immediate tax to a former spouse's RRSP or RRIF if the spouses are living separate and apart and the transfer is under a court order or written separation agreement dividing property.

If you hold a spousal RRSP, a withdrawal can sometimes be taxed in the contributor's hands, up to what the contributor paid in that year or the two preceding years. That does not apply if, at the time of the withdrawal, the spouses are living separate and apart because of the breakdown of their marriage. An accountant can confirm how this applies to you.

What to do next

• Note the date the judgment was made and count to the 31st day after it.
• Confirm with the court office whether anyone has appealed.
• Request your divorce certificate once the divorce is effective.
• Check the time limit for an equalization (property) claim, which includes two years after a divorce judgment. How time limits apply to any support or pension claims depends on your situation, so it is worth confirming with a lawyer.
• Review your will, beneficiary designations and other records.
• Speak with a lawyer before any plans that depend on being divorced by a particular date.

Frequently asked questions