Divorce in Ontario
DIVORCE IN ONTARIO
If you have lived in Ontario for at least one year, separate and apart from your spouse, you are likely eligible to apply for divorce. If you live in Toronto, Mississauga, Brampton, Cobourg, Port Hope or Peterborough, we can help you obtain your divorce.
1) In order to request a divorce in Ontario, you must first show to the court that you have a valid marriage. A marriage certificate, with a certified English or French translation, if necessary, is required. If you do not have the original marriage certificate and cannot obtain one, you or your divorce lawyer will need to provide an explanation in the Affidavit format. The court may still require you to adduce some alternate evidence of the marriage prior to granting divorce.
2) You must establish than an Ontario court has jurisdiction to grant your divorce. Superior Court of Justice in Ontario has the power to grant a divorce if either party has ordinarily resided in the Province for at least one year (12 months) prior to the submission of the application for divorce. In an uncontested divorce, the Application must be served on the other party according to the Family Law Rules. If the party cannot be located, despite your best efforts, our Toronto divorce lawyer can assist you by submitting a motion to dispense with service or a motion for substituted service.
3) There is only one legal ground for divorce. Namely, the court must be satisfied that your marriage has broken down irretrievably, without a prospect of reconciliation. A period of separation of 12 months immediately before filing the application usually satisfies the court. A couple may be separated and still live together provided they satisfy the court that they are not living as spouses. That is to say, their relationship has reduced to sharing accommodation. The Court is normally satisfied that separation has taken place by the applicant swearing to that effect – unless there is some indication of collusion. Although rarely used, the Divorce Act allows you to make a claim for divorce on the basis of adultery or cruelty, in which case you are not required to live separate and apart for a minimum of one year.
Keep in mind that it is not necessary for both spouse to agree that the marriage has broken down without a possibility of reconciliation. To obtain an uncontested divorce in Ontario only requires proof from one party that the marriage is over. The other spouse’s consent or signature is not required to proceed and the one spouse cannot stop the divorce simply because he or she does not want to be divorced.
4) The Superior Court of Justice will not grant a divorce in Ontario unless the presiding judge is fully satisfied that appropriate arrangements for any children of the marriage have been put in place. Your Toronto family lawyer may explain this requirement in greater detail. This does not mean that the arrangements are formal, nor does it mean that there is no dispute, but rather that at the time of the divorce hearing, the children are being appropriately cared and provided for.
Additional Consequences of Divorce
Whether you are applying for a contested or an uncontested divorce, coping with the divorce process is a trying time, fraught with less-than obvious legal consequences. For example, while a divorce does not prejudice your ability to claim spousal support, it gives you a short, two-year deadline to make a claim for division of property. A divorce also prevents you from seeking exclusive possession of a matrimonial home and may terminate your coverage under your spouse’s health or dental plan.