Milton Family Lawyers

The divorce process in Ontario will vary slightly, depending on whether your divorce proceeds as an uncontested divorce or a contested one.

However, every divorce begins in the same way.

Basic requirements for divorce in Ontario

Before filing for a divorce in Ontario, Canadian federal law states that you need to meet three basic requirements:

1. You and your spouse must be legally married under Canadian law or your marriage in another country must be recognized in Canada.
2. Your marriage must have broken down.
3. In most cases, you or your spouse must have lived in Ontario for a year.

The grounds for marriage breakdown are when:

• You have been living apart for 12 months or more; or
• Your spouse has been physically or mentally cruel to you; or
• Your spouse has committed adultery.

The uncontested divorce process 

Once you meet the above requirements, it is important to hire a divorce lawyer. 

This applies even in an uncontested divorce where both parties appear to agree on the terms of the divorce and are prepared to sign a separation agreement.

Experience shows us that consulting an experienced lawyer as early as possible in the process avoids expensive mistakes being made and ensures that your best interests are protected from the beginning.

Besides, uncontested divorces can turn into uncontested divorces.

Your divorce lawyer can help you with the following steps of the divorce process:

• Completing the divorce application forms for Ontario
• Filing the application with the Ontario Superior Court of Justice or the Family Court branch of the Superior Court of Justice
• Serving divorce papers and awaiting a response from the other party (within 30 days)
• Finalization of the divorce agreement and court approval

The contested divorce process 

The contested divorce process has many extra steps. 

Most people want to avoid the extra expense and stress of a divorce trial, but sometimes this is the only available course of action.

In some cases, no agreement can be reached on issues such as:

• Division of property, including all assets
• Payment of outstanding debts, including the mortgage
• Child custody and parenting rights of the non-custodial parent
• Child support and Section 7 expenses
• Spousal support

Your lawyer will guide you through the following additional steps in the process, including:

• Negotiation 
• Mediation or Arbitration
• Applying for Divorce in Court
• Scheduling a Case Conference where a judge considers each party’s position on the disputed issues between them and tries to facilitate a negotiated resolution to the issue
• Scheduling and arguing motions (temporary rulings) when interim, for instance, child custody or other complex issues, are involved
• Scheduling Settlement or Trial Management Conferences 
• Conducting a trial if you and your spouse are unable to reach a settlement on the disputed issues between you

Every divorce in Ontario must pass through the Court to be approved and for a Divorce Order to be issued.

You must demonstrate to the Court that you have been separated for at least one year (or that there has been cruelty or adultery committed against you) in order for a divorce application to be considered and approved.

If there are matters in the divorce agreement that are contested, it is generally suggested that spouses attempt to settle and negotiate a resolution (or attend mediation or arbitration) rather than go to immediately file an Application for divorce in court.

After an initial 12 months of separation, an uncontested divorce will generally pass through the Court and be finalized within 4-6 months.

Contested divorces typically require many months (and in the rare and worst cases, years) to complete.

According to the office of the Attorney General of Ontario, the total court fees associated with a divorce in the province are $632.

This is broken down in the following way:

“The first payment of $212 is due when the application for divorce is filed which includes court fees of $202 and $10 that is collected for the federal Department of Justice. Additional court fees of $420 are paid before the divorce is reviewed by the court.”

There are, of course, other costs associated with a divorce, including lawyer fees.

Where a divorce is complex and an agreement cannot be easily reached, with complications involving spousal support or child custody and access, multiple court hearings may be required, and the case may even go to trial (with witnesses and months of litigation involved).

In such cases, an individual can expect to pay significant legal fees in addition to court fees.  This is why the preferred first step in any divorce case is to attempt to negotiate a settlement first before resorting to litigation.

It may be tempting, especially when a simple agreement between you and your spouse appears to be achievable, to proceed on your own and file for a divorce without a lawyer.

While there is nothing stopping you from doing this, it is not advised.

Problems can develop later on in the process, or even after you have signed an agreement, and you risk agreeing to a settlement that is not in your best interests. 

A lawyer can help you understand all the issues that need to be settled before a divorce can be finalized, and will advise and  inform you regarding your rights and obligations along the way.

Where there are matters like child custody and child support, or where the marriage is long and involves considerable assets or debts, it is especially important to consult with a lawyer from the beginning in order to obtain a fair and desirable outcome.

At a minimum, every individual considering a divorce should consult with a lawyer to better understand the divorce process, and certainly before signing an agreement or going to court.  

A skilled divorce lawyer will anticipate issues you are likely to face, both immediate and long-term, and will advise you accordingly so that you are able to agree to a comprehensive and lasting agreement that will protect your rights and interests, and the interests of your children, well into the future, allowing you to move forward with your life with peace of mind.