Many family law litigants are self-represented, however, divorce can be an extremely complicated and overwhelming process to tackle alone. There are a number of important issues, such as appropriate financial disclosure and with respect to division of property and assets that may be missed without legal representation. Actions taken or missed during a divorce will have lifelong consequences.
What are the steps in a divorce in Ontario?
The following steps are followed by both divorce lawyers and self-represented individuals.
1. Application (by Applicant)
2. Answer (by Respondent)
3. Reply (by Applicant)
4. First Court Date (administrative appearance before Court Clerk)
5. Case Conference (there may be one or more)
6. Settlement Conference (there may be one or more)
6.1 Motions (no motions permitted until the first case conference)
7. Trial Scheduling Conference
8. Trial management Conference
9. Exit Pre-Trial Conference
When a family law court proceeding is started, the party who initiates is called the “Applicant”.
This is the party who did not initiate the proceeding but is responding to it.
A divorce application (Form 8 Application) is a form filled out by the applicant, filed at the courthouse where the application is to be heard and served upon the respondent spouse. The application identifies the parties, additional details about the spouses and the marriage and specifies the grounds for divorce.
In addition to asking for a divorce, the application can include other claims such as custody and access, child support or spousal support, property division, exclusive possession of the matrimonial home.
If the application includes a claim for support, division of property, a financial statement must also be filled out, filed and served – Form 13 (Support Claims) or Form 13.1 (Property and Support Claims)
- You will also need to fill out, file and serve a Form 13A: Certificate of Financial Disclosure
- If you are asking for support, you will also need to fill out, file and serve a Support Deduction Order
If the application includes a claim for custody or access, a Form 35.1: Affidavit in Support of a Claim for Custody and Access must be filled out, commissioned, filed and served. This document outlines your proposed parenting plan and additional information supporting your claim.
Once the respondent is served the application, they have 30 days to file their answer (Form 10: Answer). The respondent specifies what parts of the application they disagree/agree with and can make their own claims, such as custody and access, child or spousal support, property division, exclusive possession of the matrimonial home. These claims must be supported by the appropriate documents and materials, just the same for the applicant in their application.
The respondent must file their answer materials with the court and serve them upon the applicant.
After the applicant has been served the respondent’s answer, they have 10 days to file a reply to it (Form 10A: Reply).
First Court Date
The first court date is just an administrative appearance before a court clerk who meets with you to make sure the documents are completed correctly and served. At this appearance, the next court date is set, which is a case conference.
Case conferences are overseen by a judge but are informal and are similar to a group meeting in a courtroom. The divorce lawyers for each party and the parties themselves attend the conference. The objective of a case conference is to get the parties to agree on some or all of the issues. If there is an agreement, an order can be made at the case conference with respect to that issue. These conferences are intended to help avoid trials and motions to resolve the issues. There may be more than one case conference, depending on the parties and circumstances.
In preparation for a case conference each party must serve a Form 17A: Case Conference Brief on the other party, which does not go into the continuing record. The brief summarizes the issues including background, issues the parties have resolved, issues still live, ideas on how to resolve the issues, any other issues or facts you want the judge to know. The parties must also provide an up to date Financial Statement or Affidavit if nothing has changed in their finances.
A motion is a court process where a party asks the court to decide an issue, before or instead of a trial. In contrast with conferences, these are formal appearances before the court. Motions are how you ask the court to make a temporary order to apply until the trial. Motions are commonly filed by divorce lawyers for matters including temporary custody and access or child or spousal support orders. They can also be useful tools to compel disclosure from the other party.
Important note: Unless it is an emergency or urgent, a motion cannot be filed until after the first case conference.
A settlement conference is similar to a case conference with the main difference being the judge takes a more active role in trying to get the parties to resolve and settle their issues. Both parties and their divorce lawyers attend the settlement conference.The parties are required to submit an Offer to Settle in their brief. The rules are the same as a case conference in that an order can only be made on consent and the brief is not included in the continuing record.
Each party must serve on the other party a Form 17C: Settlement Conference Brief, which does not go into the continuing record. The brief summarizes the issues including background, issues the parties have resolved, issues still live, ideas on how to resolve the issues, any other issues or facts you want the judge to know. The parties must also provide an up to date Financial Statement, or Affidavit (if nothing has changed in their finances).
Trial Scheduling Conference
If the issues could not be resolved and trial is inevitable, this is the first trial-focused event. The purpose of the trial scheduling conference is to ensure trial readiness and to get directions as to how the trial will proceed.Timelines will be set including due dates for all court documents and witness lists. The issues that will be addressed at trial are finalized.
Each party must submit a Trial Scheduling Endorsement Form that lists the issues for trial, the witnesses to be called, and how much time required for the trial. The form is reviewed and signed by the judge.
Trial Management Conference
This conference happens approximately 2 weeks before the scheduled trial. Each party must file a Trial Record, an Offer to settle, outline of Opening Statement and a Draft Order. The purpose of this conference is to confirm the parties are ready for trial, have filed their trial records and exchanged information required in the Trial Scheduling Endorsement Form. The judge will provide any further directions or revisions to the Trial Scheduling Endorsement Form and will explore any final opportunities for settlement.
Exit Pre-Trial Conference
This is the final opportunity to settle the issues and avoid a trial and is held a few days before trial.
This is a very formal court process presided over by a different judge from the one who has been managing the case up to the Exit Pre Trial Conference.
Each party opportunity to present their side of the case and to refute the other side’s position. Witnesses are called, examined and cross-examined. Documents are filed as exhibits. Opening and closing statements and legal arguments are made. At the end the judge will make a final decision on all issues.
Can I still get a divorce if my ex won’t respond to my application for divorce?
If you the application and required documents have been correctly filled out, filed and served and the time for the Answer has expired with no word from the other party, your divorce lawyer, can ask the court to make an order for an uncontested divorce. The court will require evidence that attempts, usually multiple, have been made to serve the respondent. If the court is satisfied on this point, they will consider your claims but will not make orders without ensuring they comply with law and legal principles including the best interest of the child.
Is adultery grounds for divorce?
Yes, adultery is grounds for divorce. A single act is sufficient so long as the adultery took place before the divorce application was filed and you did not live together for more than 90 days after discovering the adultery. There must have been an actual physical sexual relationship and there must be evidence brought proving the adultery. While this is a legitimate ground for divorce, most divorce lawyers rely on the breakdown of the marriage as grounds for divorce.
How long does it take to get a divorce?
You and your spouse have to have been separated for at least one year before you can be granted a divorce.
What happens if you try to reconcile?
During the year or separation, the parties may reconcile for up to 90 days, if they reconcile for longer than 90 days, the one year clock resets.
How long does it take for a divorce to be finalized in Ontario?
After you have been separated for one year, the court may grant a divorce. The divorce order takes effect 31 days after the date of the order.
What’s the difference between a legal separation and divorce?
During a legal separation you are still legally married to your spouse even though you are no longer living together. If you want to remarry you will still have to apply to the court for a legal divorce.
Do I need a separation agreement before divorce?
No. So long as you and your spouse have lived separate and apart for at least one year, you have met the requirement. A separation agreement can be signed before or after a divorce and is a legally binding contract that sets out the parties agreement with respect to issues like custody and access, child and spousal support. When using a separation agreement, always seek the advice of divorce lawyer.
Who gets the house in a divorce?
If you are legally married, the home is called the “matrimonial home” and both spouses have a right to live in the house and to claim a share in the home. The matrimonial home is considered property, which is then dealt with in an equalization payment that divides property of the marriage.
What if my ex is refusing a divorce?
There is technically no ability for either party to refuse a divorce. Grounds for divorce are satisfied when there has been a breakdown in the marriage and the parties have been separated for at least one year. Your ex may deny this and it will be up to the court to determine whether this is the case or not.
What happens if my ex refuses to sign divorce papers?
Unlike what is shown on TV, it’s not a matter of one spouse refusing to sign “divorce papers”. There are no “divorce papers” to sign in Ontario. The only reason needed for a divorce to be granted is that there has been a breakdown of the marriage and the parties have been separated for at least one year. Your ex may argue there has not been a breakdown of a marriage, or, that you have not been separated for at least one year.
What is an uncontested divorce?
An uncontested divorce is where the spouses are in agreement on all issues raised by the divorce. The alternative to an uncontested divorce is a trial.