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A decree of divorce is an Order of the court stating that you are no longer legally married to your spouse. Getting a divorce decree can be a separate process from dealing with the other issues that arise from a marriage breakdown, or all the issues can be handled at the same time. However, it is usually best to take care of the other issues like custody, access, support, and division of property by negotiating a reasonable separation agreement between spouses, if possible.

Eligibility/Jurisdiction for Ontario Divorce

Section 3(1) of the Divorce Act states that if either spouse has been ordinarily resident in Ontario for at least one year immediately prior to commencing the divorce proceeding, an Ontario court has jurisdiction to hear the case. The residence of the parties and/or whether there are children will affect the municipal location of the proper court. If you’re not sure whether you are eligible to apply for divorce in Ontario, speak to a Zeidman family lawyer for assistance.

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Summary of Steps in Divorce Cases

The type and number of steps in a divorce case will depend on many factors, including whether you and your spouse have already agreed on all issues (e.g. custody, access, support, property division) other than the divorce itself.

Uncontested Divorce. If the divorce itself is the only issue, you can proceed with what is called an uncontested divorce. An uncontested divorce is quicker, simpler and less costly. On average, the entire process for an uncontested divorce can be completed within three to six months, and you do not need to go to court. Typical steps in this process are as follows:

  • You complete an Application and related paperwork for an uncontested divorce with your lawyer;
  • The lawyer’s office issues (files) the Application and related paperwork with the court;
  • The lawyer’s process server personally delivers a copy of the Application to your spouse;
  • If there is no Answer served or filed by your spouse within 30 days (if they were served in Canada or the U.S.) from when they received the Application, you complete an Affidavit for Divorce and related paperwork with your lawyer;
  • Your lawyer’s process server files your Affidavit for Divorce and related paperwork with the court;
  • The court mails your lawyer and your spouse an issued Divorce Order which takes effect 31 days after it is issued;
  • If there is no appeal of the Order within the 31 days, your lawyer completes an Affidavit for a Certificate of Divorce and related paperwork; and
  • Your lawyer’s process server attends the court to get the Divorce Certificate issued and then returns it to your lawyer.

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Contested Divorce. If you and your spouse have been unable to finalize a separation agreement, and if you are not pursuing an alternative dispute resolution mechanism like mediation or arbitration, you may wish litigate the outstanding issues and have the court decide them. The steps in a contested divorce Application depend on many variables, including the number of parties, the number and type of issues, the level or depth of conflict between the spouses, the financial disclosure or lack of it, and the desire of both spouses to settle their issues. If you are involved or are on the verge of being involved in a contested divorce proceeding, contact a Zeidman family lawyer to discuss your options and strategies. Typical simplified steps in a contested divorce proceeding are as follows:

Initial Exchange of Court Papers

  • You complete an Application and related paperwork for an contested divorce with your lawyer;
  • The lawyer’s office issues (files) the Application and related paperwork with the court;
  • The lawyer’s process server personally delivers a copy of the Application to your spouse;
  • Your spouse completes an Answer and related paperwork with their lawyer;
  • Your spouse’s Answer and related paperwork are served on your lawyer within 30 days (if your spouse was served in Canada or the U.S.) from when they received your Application, and then filed with the court;
  • You may complete a Reply to your spouse’s Answer, which can be served and filed with the court within 10 days of receiving the Answer;

Standard Court Appearances

  • A First Appearance or Case Conference date may have been given by the court when initial paperwork was filed and exchanged. If not, you complete a Conference Notice, have it issued by the court’s scheduling coordinator, serve it on your spouse’s lawyer, and then file it with the court;
  • In some jurisdictions, there will be a First Appearance to deal with preliminary issues. Otherwise the first court date will be a Case Conference;
Case Conference
  • You complete a Case Conference Brief and related paperwork with your lawyer, which are then served on your spouse’s lawyer and filed with the court before the scheduled Conference. Your spouse and their lawyer do the same. The focus is on identifying outstanding issues and your proposals for resolving them;
  • All parties and their lawyers attend court for the Case Conference, which is a relatively informal process where a judge hears from both side and then attempts to narrow or resolve as many issues as possible within tight time constraints (usually 30 minutes or less). There may be more than one Case Conference in a proceeding;
  • If there are still outstanding issues after the Case Conference, a Settlement Conference will be scheduled;
Settlement Conference
  • You complete a Settlement Conference Brief and related paperwork with your lawyer, which are then served on your spouse’s lawyer and filed with the court before the scheduled Conference. Your spouse and their lawyer do the same. The focus is on identifying outstanding issues and your offers for settling them;
  • All parties and their lawyers attend court for the Settlement Conference, which is very similar to the Case Conference except that the judge will be more focused on the parties’ settlement attempts, offers to settle, and giving opinions on the issues. There may be more than one Settlement Conference in a proceeding;
  • If there are still outstanding issues after the Settlement Conference, a Trial Management Conference will be scheduled;
Trial Management Conference
  • You complete a Trial Management Conference Brief and related paperwork with your lawyer, which are then served on your spouse’s lawyer and filed with the court before the scheduled Conference. Your spouse and their lawyer do the same. The focus is on identifying the length of time needed for trial;
  • All parties and their lawyers attend court for the Conference. The judge will focus on trial issues and time, but the judge will still explore settlement possibilities;
  • If there are still outstanding issues at the end of the Conference, a Trial will be scheduled;
The Trial
  • Prior to trial, the parties’ lawyers may use various other court processes or appearance (see below). If there is no settlement before trial, the trial will proceed over the length of time previously allotted by the court. However, over 95% of all family law court cases settle before trial;
  • Various paperwork is prepared by the lawyers, exchanged, and filed with the court prior to trial, such as an Agreed Statement of Facts and Books of Authorities;
  • At trial, the lawyers make opening statements. The parties and other witnesses then testify, with the lawyers examining, cross-examining, and re-examining them. After all evidence is presented and closing arguments are made, the judge makes a decision, which is usually not delivered until some weeks or months after the trial dates. The decision is formalized into an Order;
  • One or more of the parties may decide to appeal all or part of the Order to a higher court. A Certificate of Divorce is obtained as in an uncontested divorce proceeding.

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Other Court Processes or Appearances

The following steps can be taken at almost any stage of the court process outlined above:

  • Offer to Settle. At any stage (even before the court process), you or your spouse can offer to settle some or all of the issues between you. If accepted, Minutes of Settlement, a Separation Agreement, or a court Order can be prepared, depending on the stage of the process you are at and what has been settled. Offers are done without prejudice, meaning their contents can’t be disclosed to the trial judge until after a final order is made, at which point an Offer can have severe cost consequences on the party who did not accept it.
  • Questioning. At any stage in the process, either or both lawyers may want to question the other party about one or more issues. Your lawyer has the right to question your spouse about their Financial Statement if your lawyer has previously served a Request for Information. Otherwise, questioning can only proceed if both parties agree or if the court has ordered it. Questioning will most often occur at a court reporter’s office under oath, and a transcript can be ordered and filed as evidence with the court.
  • Motions. These are like mini-trials of one or more issues that either party can request based on Affidavit evidence for a judge to make temporary Orders pending a final determination at trial (or final settlement). To bring a Motion, a Case Conference on the issue must first have occurred, unless it is an Emergency situation (as defined by the Family Law Rules and case law). Your lawyer will prepare and deliver a Notice of Motion, specifying what relief is sought, and Affidavit(s) outlining the facts and/or documents in support of your claim. The other lawyer will prepare and deliver a responding Affidavit and possibly a Notice of Motion too. The Motion hearing is similar to a trial, but without witnesses. At the end, the judge will make a Temporary Order and can award costs. Either party may decide to appeal all or part of the Temporary Order.
  • Office of the Children’s Lawyer. This is a department of the Attorney General’s office that may appoint a lawyer to represent children in a family law case or that may appoint a social worker to conduct an investigation of Custody and Access issues and make recommendations to the court in a report. You or your spouse may request that the matters of Custody and Access be referred to the Office of the Children’s lawyer. If an Order is made referring the case, the Office of the Children’s Lawyer then decides whether and in what capacity to participate after receiving Intake Forms from each party.

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Grounds for Divorce – Breakdown of Marriage

To obtain a divorce, either or both spouses can apply to the right court requesting for a decree of divorce. If the court finds that there has been a breakdown of the marriage, the court can grant a divorce. According to section 8(2) of the Divorce Act, a breakdown of the marriage is established only if:

  • the spouses have lived separate and apart for at least one year immediately prior to the determination of the divorce proceeding;
  • the spouse against whom the divorce proceeding is brought has, since celebration of the marriage:
    • committed adultery, or
    • treated the other spouse with physical or mental cruelty of such a king as to render intolerable the continued cohabitation of the spouses.

Being separated for at least one year is by far the most common grounds for divorce.

Separate and Apart. For a court to consider you to be living separate and apart, at least one spouse must have the intention to live separate and apart from the other. If that intention exists for at least one year without interruption, you have grounds for getting a divorce order. Even if you attempted to reconcile during that year by cohabiting for periods totaling not more than ninety days, you still have grounds for divorce (section 8(3)(b)(ii) of the Divorce Act).

Being separated does not require that you live in separate homes in order to be living separate and apart. Spouses can be living separate and apart under the same roof, depending on the circumstances. Factors that are considered in ascertaining if you are living separate and apart could include:

  • absence of sexual relations
  • sleeping in separate bedrooms
  • eating separately
  • not attending social functions together
  • not celebrating holidays together
  • each spouse becoming responsible for their own domestic services

Adultery. This is rarely used as a ground for divorce, even if it occurs. If adultery is used as a ground for divorce in your court application, it can complicate the proceeding. Although you won’t need direct evidence of the adultery, you will need to convince the court on a balance of probabilities that the facts lead one to conclude that adultery occurred. If you do claim adultery as a ground for divorce, the Family Law Rules allow the third person to be named as a party in the court application, in which case they must be served with the court papers.

Physical or Mental Cruelty. This also is rarely used as a ground for divorce, even if it occurs. It can complicate the proceeding immensely because various specific examples must be provided and then proved, usually with the spouse denying the behaviour. The conduct of your spouse must be of a “grave and weighty” nature for this ground of divorce to be found. It cannot simply be conduct indicating incompatibility. Also, it must be concluded that the cruelty rendered “intolerable the continued cohabitation of the spouses” in order to succeed.

Although you won’t need direct evidence of the adultery, you will need to convince the court on a balance of probabilities that the facts lead one to conclude that adultery occurred. If you do claim adultery as a ground for divorce, the Family Law Rules allow the third person to be named as a party in the court application, in which case they must be served with the court papers.

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