Withdrawing a Divorce Application in Ontario: Form 12 and Costs

You started a divorce, and now you want to stop. Maybe you and your spouse are trying again, maybe you have simply changed your mind, or maybe you only want to drop one part of what you asked for. Ontario's court rules have a specific step for this, and it can come with a cost.

This article explains how withdrawing works, who pays costs, how a joint application is different, and what to think about before you give up a case that is already underway. It is general information, not advice on your own file.

How to withdraw: the Notice of Withdrawal (Form 12)

A party may withdraw all or part of an application, answer or reply by serving a Notice of Withdrawal (Form 12). That means you can end the whole case, or drop only some of your claims and keep going on the rest.

The rule covers whoever filed the document. An applicant can withdraw an application, and a respondent can withdraw an answer or a reply. If a respondent withdraws an answer, the applicant may then be the one who files the affidavit for the divorce.

• Whole withdrawal: you end your application, answer or reply entirely.
• Partial withdrawal: you drop one claim, such as a particular order you no longer want, while the case continues.
• Either way, the step is taken by serving a Notice of Withdrawal (Form 12).

Who pays costs when you withdraw

The default rule matters. The party who withdraws must pay every other party's costs up to the date of the withdrawal, unless the court orders otherwise or the parties agree otherwise.

This is why it is worth talking to your spouse, or their lawyer, before you serve the notice. If you both agree that nobody will claim costs, or that costs will be a set amount, that agreement can replace the default rule. Get any agreement in writing, and ask a lawyer to confirm the wording.

Special parties, child parties and joint applications

There is an exception to the usual rule. The application, answer or reply of a special party or a child party can be withdrawn only with the court's permission. If that may apply to you, get legal advice before taking any step.

A joint application works differently from one spouse suing the other. Both spouses may file a joint application with no respondent, and the divorce and any other order can be made only with both spouses' consent. If one spouse stops consenting, the divorce cannot go ahead on that basis. What that means for the file, and how to formally end it, is worth confirming with a lawyer.

Reconciliation: pausing instead of withdrawing

If you are thinking of getting back together, withdrawing may not be your only choice. Before it considers the evidence, the court must be satisfied there is no possibility the spouses will reconcile. If reconciliation seems possible at any stage, it can adjourn the case so they can try.

Trying again also does not have to cost you your separation time. Living together again for a total of not more than 90 days, mainly to try to reconcile, does not interrupt the one-year separation period. The usual way to prove breakdown is living separate and apart for at least one year.

• If the attempt works, you can withdraw later and deal with costs then.
• If it does not, the earlier separation time may still count, within the 90-day limit.
• Living together for longer than that, or for reasons other than a reconciliation attempt, may affect the count. A lawyer can check your dates.

Fees already paid and starting again

Whether any court fees you already paid can be recovered depends on your circumstances, so ask the court office or a lawyer rather than assuming. Whether and how you can start again after withdrawing also depends on your situation, so it is worth confirming with a lawyer.

If you do apply again, the rules apply fresh. Either spouse must have been habitually resident in Ontario for at least one year immediately before the new proceeding starts. Filing fees apply again: $214 to file an application, plus the federal $10 fee for a divorce claim. A person who cannot afford fees can ask for a fee waiver, but the federal $10 fee cannot be waived.

What to do next

• Decide whether you want to end the whole case, drop only some claims, or pause.
• Talk to your spouse or their lawyer about costs before serving Form 12.
• Put any costs agreement in writing.
• Check whether a special party or child party is involved.
• If you have lived together again, write down the dates so you can show the 90-day total.
• Ask a lawyer to review your file before you serve the notice, especially if support, parenting or property claims are in play.

Frequently asked questions