Joint Divorce Ontario: When It Is Not the Right Choice

A joint divorce application sounds appealing: one set of forms, one filing, and no one "suing" the other. For some couples it is a sensible, low-conflict route. For others, it can hide problems that only show up later.

This article explains the situations where a joint filing may not suit you. It is general information, not advice about your own case, and a lawyer can tell you how these points apply to your facts.

What joint filing assumes

A joint application assumes that both spouses want the same outcome and are comfortable acting together. The form used is Form 8A, which covers a simple divorce-only or joint application. By contrast, in a case started by one spouse, the other has 30 days after service to file an answer, or 60 days if outside Canada and the United States.

A joint approach also assumes the basic legal conditions are met. Breakdown is generally shown by living separate and apart for at least one year immediately before the determination, or by adultery or cruelty that makes living together intolerable. One spouse must have been habitually resident in Ontario for at least one year before the proceeding starts.

Warning signs that joint filing may not fit

• There is ongoing conflict, and you expect disagreements about what goes in the forms.
• One spouse controls the finances or the information, and the other does not have a full picture.
• One spouse feels pressured, afraid or unable to say no.
• Property, debts, pensions or support have not been settled.
• Parenting arrangements are unclear or disputed.
• You need a court order quickly because of an urgent situation.

If you are afraid of your spouse or feel pressured, a joint process that requires close cooperation may not be safe or fair. In that situation, speak to a lawyer or a support service before agreeing to anything. A sole application lets one spouse start the case and puts the other on the usual timelines for responding.

Unresolved issues: why timing matters

A divorce ends the marriage, but money questions do not necessarily disappear. In Ontario, equalization compares each spouse's net family property at separation with the net family property at the date of marriage, and the spouse with the larger net increase pays half the difference. Retirement savings and TFSAs are among the property counted. Pensions require separate steps and valuation.

The key risk is the deadline. A property claim must be started within six years from the day you separated or two years from the day your divorce is final, whichever comes first. Getting a divorce can therefore shorten the time you have. If you have not dealt with property, ask a lawyer how this applies before you finalize a divorce.

Support is another issue. The Divorce Act allows the court to order child support and spousal support. A spousal support order should recognize economic advantages or disadvantages to the spouses arising from the marriage or its breakdown. Whether to deal with these issues before, or at the same time as, the divorce is worth discussing with a lawyer.

Joint application or sole application

If the case is only about divorce, costs, or an order based on an existing agreement or order, you may not need to attend the Mandatory Information Program. If other claims are made, both parties must attend it, whoever started the case, unless both parties consent to the order sought or you have already attended.

What to do next

Before agreeing to a joint filing, take stock of what is actually settled. Disclosure matters here. The Court of Appeal has described the duty to disclose financial information as the most basic obligation in family law. If you do not have full financial information, a joint divorce is a risky place to find that out.

• List every issue: parenting, child support, spousal support, property, debts and pensions.
• Mark which ones are settled in writing and which are not.
• Gather financial records for both spouses.
• Think about whether you can sign freely and safely.
• Speak with a lawyer about the property deadline before the divorce becomes final.
• Consider mediation if you are close to agreement. Courthouses offer mediation on the court date, and low-cost off-site mediation is available on a sliding scale.

Frequently asked questions