Key Concepts
- You don’t need your spouse’s consent to get divorced. You can apply for a divorce even if your spouse does not agree.
- The divorce process depends on your circumstances. You can apply individually, jointly with your spouse, or seek a divorce alongside other family law claims.
- Getting divorced doesn’t automatically resolve everything else. Parenting, support, and property division may need to be addressed separately.
If you are wondering how to get a divorce in Ontario, you will need to meet certain legal requirements, file an application with the court, and obtain a Divorce Order. While the process can be relatively straightforward where both spouses agree, there are important considerations before filing, particularly if you have children, shared property, or outstanding financial matters.
The divorce process can feel overwhelming, particularly when navigating the legal requirements during an already emotionally difficult time. To help make the process clearer, we’ve broken down the steps involved in obtaining a divorce in Ontario.
Step 1: Confirm That You Meet the Legal Requirements for Divorce
To apply for a divorce in Ontario, you must generally establish that:
- You and your spouse are legally married;
- Your marriage has broken down; and
- Either you or your spouse has ordinarily resided in Ontario for at least one year immediately before the divorce application is started.
Under the Divorce Act, which governs divorces in Ontario, there are three ways to establish that a marriage has broken down:
- One-year separation: You and your spouse have lived separate and apart for at least one year.
- Adultery: Your spouse has committed adultery during the marriage.
- Physical or mental cruelty: Your spouse has treated you with physical or mental cruelty that makes continuing to live together intolerable.
Although Canada has a no-fault divorce system, adultery and cruelty remain alternative statutory ways of establishing marriage breakdown. However, the most common basis for divorce in Ontario is a one-year separation. This is generally the simplest approach because neither spouse needs to establish adultery or cruelty on the part of the other. Unlike divorces based on adultery or cruelty, the focus is on the period of separation rather than the conduct of either spouse.
You can start a divorce application before the one-year separation period has passed, provided you are already separated. However, the court cannot grant the divorce on that basis until the required separation period has been completed.
Step 2: Determine Which Type of Divorce Application to File
In Ontario, the appropriate divorce application will depend on whether you and your spouse are applying together and whether you are seeking any additional relief from the court.
Simple Divorce
A simple divorce is an application brought by one spouse seeking only a divorce, without asking the court to determine issues such as parenting, support, or property division.
Your spouse does not need to agree to the divorce for you to bring a simple divorce application. However, they must generally be served with the application and given an opportunity to respond.
A simple divorce may be appropriate where one spouse wishes to proceed with the divorce independently, whether or not the parties have already resolved their outstanding issues through a separation agreement. Unlike a joint divorce, the applying spouse does not require the other spouse’s participation or agreement to commence the application.
Joint Divorce
A joint divorce is an application brought by both spouses together.
Both spouses sign the application and jointly ask the court to grant a divorce. Because the application is brought together, neither spouse needs to formally serve the other with the application.
A joint divorce may be a convenient option where the parties are cooperating and agree that they wish to proceed with the divorce. For example, spouses who have already resolved their parenting, support, and property issues through a separation agreement may choose to apply jointly, avoiding the need for the applicable response period.
Divorce With Other Claims
It is important to distinguish between agreeing to a divorce and reaching an agreement on all outstanding issues. Even where both spouses agree that their marriage is over, they may have very different positions regarding their financial obligations or parenting arrangements.
Where there are unresolved issues relating to parenting, child support, spousal support, or property division, a spouse may commence a divorce application that also seeks orders addressing those matters.
Unlike a simple or joint divorce proceeding seeking only a divorce, this process may involve additional court documents, financial disclosure, court conferences, and potentially a trial if the parties cannot reach an agreement.
It is also important to understand that obtaining a divorce does not automatically resolve these other issues. A Divorce Order legally ends the marriage, but it does not necessarily determine the parties’ rights and obligations concerning property, support, or parenting. These matters may need to be addressed separately, and certain claims, particularly those relating to property division, may be subject to limitation periods. If you are unsure which application fits your situation, an experienced family lawyer can help you decide before you file.
Step 3: Prepare the Required Divorce Documents
Once you have determined the appropriate type of application, the next step is to prepare the necessary court documents.
The documents required will depend on the type of divorce application you are bringing and whether you are seeking additional orders from the court. All of the forms listed below are available free of charge on the Ontario Court Forms website.
To commence a divorce proceeding, you will generally need:
- Form 8A: Application (Divorce) for simple or joint divorces, or Form 8: Application (General) for divorce applications involving other disputed claims. The application sets out the parties’ information, marriage details, and the orders being requested from the court.
- Marriage Certificate: Your original marriage certificate or other evidence of marriage accepted by the court.
For simple and joint divorces, the following documents will also generally be required before the court can grant the divorce:
- Form 36: Affidavit for Divorce: A sworn or affirmed document confirming the information necessary for the court to grant a divorce. For a joint divorce, each spouse must complete their own Form 36, which is generally submitted with the joint application. For a simple divorce, Form 36 is generally submitted after the applicable response period has expired without an Answer.
- Form 25A: Divorce Order: A proposed order for the court to issue if the divorce is granted.
Where a divorce application includes other claims, additional documents may be required, including financial statements, supporting affidavits, and financial disclosure, depending on the relief being sought. The documents and procedures required to obtain the Divorce Order will also depend on how those claims are resolved.
For divorce applications submitted electronically through Ontario’s designated online filing system, a separate Continuing Record is generally not required.
If you were married outside Canada, you may need to provide additional documentation, including a certified translation of your marriage certificate if it is not in English or French.
Step 4: File Your Divorce Application With the Court
Divorce applications in Ontario must be filed with the Superior Court of Justice, including its Family Court Branch where applicable. The Ontario Court of Justice does not have jurisdiction to grant divorces.
You can generally submit your application online through Ontario’s family court filing services or file it with the appropriate courthouse.
There are court fees associated with obtaining a divorce, but note that these amounts do not include legal fees or other expenses, such as obtaining marriage documents or arranging service. Applications involving other claims may also involve additional court fees and expenses.
Individuals who cannot afford the court fees may qualify for a fee waiver.
Step 5: Serve Your Spouse (If Required)
If you have filed a simple divorce application or a general application seeking a divorce along with other claims, you must generally arrange for your spouse to be served with the issued application and any other documents required by the court rules.
You cannot personally serve your spouse with the application. Service must be completed by another adult in accordance with Ontario’s Family Law Rules.
The person who serves the documents will ordinarily complete an Affidavit of Service confirming when and how service was carried out.
Once served in Ontario or elsewhere in Canada or the United States, your spouse generally has 30 days to respond. If served outside Canada and the United States, the response period is generally 60 days.
If your spouse does not respond within the applicable deadline, you may be able to proceed with the divorce as an uncontested matter.
If your spouse files an Answer, additional steps may be required to address any disputed claims before the divorce can proceed.
If you and your spouse filed a joint divorce application, this step is not necessary because both parties have already signed the application.
Step 6: Proceed With Your Divorce Application
Once the application has been filed and any required service has been completed, the next steps will depend on whether the divorce is uncontested and whether there are other claims before the court.
For a simple divorce where the other spouse has not filed an Answer, the applicant can generally proceed by submitting the Affidavit for Divorce, proposed Divorce Order, and any other required documents.
For a joint divorce, these documents are generally submitted with the initial application.
In most uncontested divorce proceedings, the parties do not need to attend court in person. Instead, a judge reviews the written materials to determine whether the legal requirements for divorce have been met.
Where the divorce application includes disputed claims, such as parenting, support, or property division, the proceeding may involve additional steps, including financial disclosure, court conferences, motions, and potentially a trial.
However, the parties do not necessarily have to resolve every outstanding issue before obtaining a divorce. In certain circumstances, the court may permit the divorce claim to proceed separately from the remaining claims.
Regardless of how the application proceeds, if there are children of the marriage, the court must be satisfied that reasonable arrangements have been made for their support.
If the legal requirements are met, the judge may grant the divorce and issue a Divorce Order. However, if the court identifies missing information, deficiencies in the documents, or concerns regarding child support arrangements, additional steps may be required before the divorce is granted.
Step 7: Receive a Divorce Order
If the judge grants your divorce, the court will issue a Divorce Order.
A copy of the signed order will be provided to the parties in accordance with the court’s applicable procedures.
However, receiving a Divorce Order does not mean that your divorce takes effect immediately.
Step 8: Obtain Your Divorce Certificate
In most cases, a divorce becomes legally effective 31 days after the Divorce Order is granted, provided no appeal affects its effective date.
Once the divorce has taken effect, you can request a Divorce Certificate from the court. The Divorce Certificate confirms that your marriage has legally ended and may be required if you intend to remarry.
How to Get a Divorce in Ontario: Frequently Asked Questions
What does it mean to be separated? Can we be separated if we still live in the same house?
In Ontario, separation occurs when one or both spouses decide to end their relationship and begin living separate and apart.
Spouses can be considered separated even if they continue living under the same roof. The relevant factors may include whether they have ended their marital relationship, maintain separate routines, and conduct themselves as separated spouses.
If we signed a separation agreement, are we divorced?
Signing a separation agreement does not automatically divorce you. Even where spouses have reached a comprehensive agreement resolving all outstanding issues, they must still obtain a Divorce Order to legally end their marriage.
Can I get a divorce if my spouse does not agree?
Yes. Your spouse’s consent is not required to obtain a divorce. If you meet the legal requirements and properly serve your spouse, you may be able to proceed even if they do not agree or do not respond to the application.
How long does it take to get a divorce in Ontario?
The timeline depends on whether the divorce is contested, whether the required documents are complete, and the court’s processing times. An uncontested divorce can often be completed within several months after filing, although delays are possible. Where the divorce is based on separation, the court must also be satisfied that the required one-year period has passed before granting the divorce.
Do I need a family lawyer to get divorced?
You are not legally required to retain a lawyer to obtain a divorce in Ontario. Where the divorce is uncontested and all other matters have been resolved, some individuals choose to complete the process themselves.
However, even where spouses agree to divorce, there may be important legal and financial considerations that are not immediately apparent.
A divorce lawyer can help you understand your rights, determine the appropriate type of divorce application, and ensure that the necessary documents are properly prepared and filed.
More importantly, obtaining legal advice before proceeding can help ensure that the divorce itself does not unintentionally affect your ability to pursue other claims arising from the marriage.
Speak With an Ontario Divorce Lawyer
Bani Family Law assists clients throughout Ontario with divorce, separation agreements, parenting arrangements, support, and property division. Our team is led by principal lawyer Shelly Banihashemi and includes associates Lemooriya Ananthan and Shalu Atwal. You can meet our team to learn more about each lawyer.
We also serve clients in their own language through our Persian family lawyer and Tamil family lawyer services.
From our Markham office, we help clients across the Greater Toronto Area and beyond, including Markham, Richmond Hill, Vaughan, Toronto, Scarborough, Brampton, Oshawa, and Barrie.
Contact our office to discuss your circumstances and learn how we can assist you with the next steps.
