Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice with respect to getting an uncontested divorce in Ontario, you should seek professional assistance (e.g. make a post on Dynamic Lawyers). We have Toronto and Ottawa family law lawyers registered on Dynamic Lawyers who can offer information, advice, and assistance with respect to your uncontested divorce matters.
There were a number of issues that YWCA members identified during today’s presentation which I would like to discuss in more detail over the next few blogs. One of the issues that came up was getting an uncontested divorce in Ontario.
So we begin with the assumption that a couple has signed a separation agreement to settle all family issues between them (e.g. equalization, the matrimonial home, child and spousal support, etc.). While separation agreements resolve family matters when you separate, they do not legally end your marriage. The only way to do this is to get a divorce and only a court can give you a divorce.
To proceed with an uncontested divorce, a party will need to complete and submit the divorce forms, pay the required court fees, and follow the court rules and procedures. It is always advisable to retain legal counsel to avoid potential pitfalls in obtaining a divorce that will not later be contested.
Divorce
The Federal Divorce Act governs divorces in Canada. The only ground for divorce in Canada is “breakdown of the marriage” [s. 8(1) of that Act]. A “breakdown of the marriage” includes having lived separate and apart for at least a year, the commission of adultery by one of the spouses after the marriage, or one spouse having treated the other with physical or mental cruelty of such a kind as to render continued cohabitation intolerable [s.8(2) of the Act].
Documentation
The Family Law Rules governs the process for getting a divorce. To start the process, either spouse can file an application [this party is called the applicant] naming the other spouse as a respondent or both spouses can file a joint application with no respondent [s. 36(1) of those Rules]. The following documents must also be filed: a marriage certificate and, if applicable, a report on earlier divorce cases started by either spouse [s. 36(4) of those Rules].
If the respondent files no answer, or files one and later withdraws it, the applicant must file an affidavit (Form 36) that confirms that all the information in the application is correct [s. 36(5) of those Rules]. Also, three copies of a draft divorce order must be provided (Form 25A) with a stamped envelope addressed to each party [s. 36(6) of those Rules].
Getting the Divorce Certificate
When these documents have been properly filed with the court, the court clerk will prepare a certificate (Form 36A) and present the documents to a judge for review. If the judge accepts the clerk’s certificate, then he/she shall sign and mail it out to the parties. The amount of time it takes to receive the clerk’s certificate depends on how busy the court is: estimates range from two weeks to five months, depending on the jurisdiction (i.e. city in which you live).
Once a divorce “takes effect” it has legal effect throughout Canada [s. 13 of the Divorce Act]. Unless special circumstances exist and a court orders otherwise, a divorce takes effect on the thirty-first day after the day on which the order granting the divorce is rendered [s. 12(1) and (2)]. Once the divorce takes effect and provided no appeal has been filed, either party can obtain a divorce certificate [Form 36B] for a small fee (e.g. $20). Parties can obtain this document on a same-day basis in most courts and will need this certificate in order to remarry.
Lawyer’s Duties
Every lawyer acting on behalf of a spouse in a divorce proceeding must follow the provisions of the Divorce Act that have as their object the reconciliation of spouses. Lawyers must discuss with the spouses the possibility of reconciliation before the application is signed (including the availability of marriage counseling or guidance facilities that might be able to assist the spouses in achieving reconciliation).
The lawyer does not have to comply with this section where the circumstances of the case are of “such a nature” that it would clearly not be appropriate to do so [s. 9(1) of that Act]. The lawyer must also discuss with the spouse the advisability of negotiating matters that may be the subject of a support or custody order and to inform him or her of the mediation facilities known to the lawyer that might be able to assist the spouses in negotiating these matters [s. 9(2) of that Act].
Fees
According to our latest report on legal fees in Toronto (wherein we telephone interviewed 500 lawyers over a 3-month period about their legal fees), the typical legal cost (excluding government fees) for an uncontested divorce is about $1,000. Government fees are about $400-$500 (in Toronto at the present time, for example, it costs $167 for the initial application, $280 for a judge to review the application, and $19 for the divorce certificate).
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