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Divorcing in Ontario, Frequently Asked Questions

Getting a Divorce? Here are Answers to Frequently Asked questions about getting a divorce in Ontario.

1. What are the grounds for divorce?

The Divorce Act sets out only one ground for divorce: the "breakdown of the marriage".

You establish a breakdown by showing one or more of the following conditions:

(1) you and your spouse have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or

(2) your spouse (not you) has committed adultery, or

(b) your spouse is guilty of "cruelty". That is, he or she treated you with physical or mental cruelty of such a kind as to cause it to be intolerable for you to continue living with your spouse.

Divorce Act, ss. 8(1) and 8(2)(a), (b)(i), (b)(ii)

If you are seeking to obtain a divorce on the ground of adultery or cruelty, you do not have to wait a full year to obtain the divorce. However, bringing these claims can be extremely emotionally taxing on all involved and can be difficult to prove in court. If you wish to claim divorce on the grounds of adultery or cruelty, we would recommend that you consult with and retain an experienced Family Law lawyer, rather than self-represent.

2. I've just separated - can I start the divorce process now?

Yes - You can file an Application for Divorce before you have been separated from your spouse for a full year. However, you cannot file the Affidavit for Divorce until the full year has elapsed. Please note: The Divorce Act requires that you live "separate and apart" for at least one year - this does not necessarily mean in separate homes. Many people separate, but stay living in the same home, usually for economic reasons. However, they must be essentially living separate lives in the same home. For example, there is virtually no communication between them, they eat separate meals and occupy separate bedrooms.

3. What if I don't know where my spouse lives, can I still serve a court document on him or her?

Typically you require a home address so you can serve documents on your spouse. First try searching on www.Canada411.com. If you can't find his or her address, but know where your spouse works, your spouse can be served at work. If that doesn't work, we or a process server can be hired to find your spouse and serve the documents. If this fails we will need to obtain an order from the court allowing some form of substituted service, such as serving the documents on a close relative of your spouse.

4. If I just want a divorce, do I have to go to court?

If you and your spouse agree to obtain a divorce, and there are no claims or issues that need to be resolved between you, you will not need to appear before a judge unless the judge has reviewed your divorce documents and he or she feels they need more information before they grant you a divorce. Often, however, the Court Office will contact you for this information, so there will be no need to appear before a judge.

Typically you only need to appear before a judge if the divorce is contested or the claims/issues are complex.

5. Can I get a divorce even if all the issues between myself and I are not settled?

Yes. You can sever the divorce claim from the remaining issues that need to be decided.

These remaining issues are called collateral or corollary relief issues. However, it is the duty of the Court to not grant a divorce until reasonable arrangements have been made for the support of the children. As well, if there is still an issue as to who is going to live exclusively in the matrimonial home (exclusive possession), you should wait to obtain the divorce until the issue is resolved. This is because once you are divorced you are no longer considered a spouse and do not have a claim for exclusive possession if you do not hold title to the home.

6. How do I sever the divorce claim?

You or your spouse will need to bring a Motion for Summary Judgment to separate the divorce claim from the other claims in the divorce application. It can be done as a simple, uncontested divorce if the consent of both parties is filed. If the consent of both parties is not filed, then the matter is generally heard by oral evidence before a judge. The other spouse will have the opportunity to attend to defend the motion if he or she does not wish for the divorce to be obtained prior to trial.

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