As the new year approaches, people start mulling over the idea of divorce. Shortly after New Year’s, family lawyers get bombarded with questions about how easy it will be to get a divorce in Ontario and how long will it take. People looking for a “new me” don’t want to have their ex hanging around like an anchor.
It MAY be possible to get divorced in as little as three months, but the spouses must be eligible to get divorced and they must not having any legal barriers to divorce. This post will explain.
Do You Need a Divorce?
Getting a divorce is a key part to moving on after a failed relationship. One of the early episodes of the Ontario Family Law Podcast explains what a divorce is. But to summarize, a divorce order legally ends a marriage and allows either spouse to get a divorce certificate. A divorce certificate is necessary to remarry. If you were married, and you want to marry someone else, you need to get divorced first, otherwise you are committing bigamy – and that’s a crime in Canada. So, section 8(2) of the Marriages Act says that a person why was previously married has to file a divorce certificate, or a court decision annulling the marriage, to get a new marriage licence.
If you were never married, and you were just living common law, you do not need a divorce. You may need to sort out parenting issues, child support and spousal support, and maybe there will be some property claims. However, many of those claims are not automatic if the couple was just living common law.
Are You Allowed to Get Divorced?
Also, not everyone can get divorced in Ontario, or Canada. People cannot just come here to get a divorce. Only a person who has Canada as his or her home can get divorced here.
If the spouses are married, and connected to Ontario, there are a few other basic conditions that they need to meet to get an Ontario divorce.
First, if there are children of the marriage, then there has to be child support and it has to be at least as much as the Child Support Guidelines require. A judge will not grant a divorce if the children are not getting appropriate child support – and yes, the judges do ask and that question is on the forms to get a divorce.
There is lots of information on this website about child support, including posts, podcasts and videos. This book has even more information about all family law issues.
Another basis on which, a judge can refuse a divorce is if the requesting spouse is not cooperating with the other spouse to obtain a religious divorce. Each spouse must do all that is within their power to allow the other spouse to get a religious divorce. That does not mean that a spouse has to obtain a divorce in a religion that does not allow them. But, it does mean that if the religion allows divorces, each spouse must take the steps necessary to permit the religious divorce. No religious divorce can mean no legal divorce, which means no legal remarriage.
A third requirement for an Ontario Divorce is that the spouses must have lived “separate and apart” for at least one year for the judge to grant a divorce. Yes, it is technically possible to get a divorce on the grounds of adultery or cruelty. But, getting a divorce on the grounds of adultery means including the alleged partner in that adultery as a party in the court proceedings, which makes them much more expensive. Both using both adultery and cruelty as a grounds for divorce requires proving to a judge that the adultery or cruelty actually happened. That means having a trial to prove it. Going through all the steps in court to get to a trial will take longer than a year, so it will end up being faster to get the divorce on the grounds of separation of more than a year as long as the parties agree they have been separated for at least a year.
Being separated does not mean living in different residences. It means that the spouses must have stopped living together as spouses. Often, the marriage is over long before the parties are able to move into new, separate homes. Sometimes people continue to live in the same home for financial reasons. Sometimes, they do it for the kids. The reason does not matter, as long as they are not living together to continue the marriage and anyone looking in would say “that marriage is over.” There is more about that in the video and audio podcast episode on How to Get a Legal Separation in Ontario covers his in more detail.
If the spouses agree on the facts that show they were separated more than a year ago, or one of them proves it to a judge, then the spouses can be divorced.
“Fake News” About Things That Delay Getting Divorced
It is important to note that a married spouses DOES NOT have to wait a year to start a court application, to get the other types of orders that usually go with a divorce (and are legally called corollary relief.) If a spouse is not get any support, or there are urgent parenting matters, or important property matters that cannot wait, a spouse can start a divorce application in court less than a year after separation. (Note, check out this video to determine whether going to family court is a good idea.) The court will deal with immediate issues on a temporary basis until the divorce can be granted. However, under the new Family Laws that came into effect in March 2021, parties must either try to resolve matters outside of court through negotiation, mediation, arbitration or collaborative practice, or they will have explain to the judge why using one of those quicker, and often better, alternatives was not possible.
Also, many separated spouses are pleased to hear that if the other issues are dragging on, they can get their divorce, and get remarried, before everything else is resolved. This is called “severing the divorce” and judges can do that if all the other requirements that I just described are fulfilled.
The Fastest Ways to Get Divorced in Ontario
The easiest and quickest way to get a divorce is to proceed to get an uncontested divorce. To proceed this way, both spouses must have resolved all the other issues related to the divorce, ( parenting, spousal support, property division, etc), or they must not care about them. To get a divorce, parents after to have worked out child support because the JUDGE will care about child support.)
To get an uncontested divorce, one spouse starts a divorce proceeding at their local Superior Court of Justice, usually asking for only a divorce – otherwise the court process will be more complicated. Then the spouse starting the divorce, has to have the other spouse served with the court documents asking for the divorce. However, Rule 6(4.1) of the Family Law Rules prohibits on one spouse from serving the other spouse – someone else has to do it, often a process server. Then the spouse asking for the divorce has to file an affidavit of service with the court.
What makes this process the easiest is that the “other spouse” doesn’t have to anything – and shouldn’t do anything. He or she just ignores the request for 30 days. (The time is longer if the other spouse is outside Canada or the United States, but the process is also more complicated.)
If the other spouse ignores the divorce for 30 days, the spouse who wants the divorce then files an affidavit for divorce with the court office, along with a draft divorce order. Since no one is opposing the divorce, the court documents get put in the pile of divorces that are going to a judge to review. It usually takes two to three months, depending on how busy the judges are at that court house, for the judge to review and approve or deny the divorce. The Court office will mail out the Divorce Order, or the judges reasons for refusing it to the parties. To get remarried, a spouse has to go back to the court office and get a Certificate of Divorce. The Superior Court charges for all of these steps.
IT IS VERY IMPORTANT TO KNOW THAT GETTING DIVORED AFFECTS THE SPOUSES LEGAL RIGHTS. Among other issues, it can affect the ability to claim spousal support, divide property, and seek other relief. It also restricts where the spouses can deal with any future issues – they may be restricted the court in the location where they got the divorce. Consequently, IT IS VERY IMPORTANT to speak to a lawyer before asking for a divorce or ignoring a spouse’s request for a divorce.
You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of parenting cases (parenting time and decision making), child support, spousal support, property division, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback. But to understand how the law works precisely in your situation, it is always best to speak to a good Family Law Lawyer.
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