November 2, 2022
A simple divorce can often be not so simple. Get prepared. We can help.
Getting a simple divorce in Ontario sounds simple enough. If you are prepared.
Divorce now can be done online. Preparing for it properly can help make it a much smoother process. Remember, if you have children, you must resolve the parenting and child support issues before you can proceed with a divorce anywhere you live in Canada.
A note on language here. When we say “divorce” we do not mean settling all the issues of the separation. Those are things like dividing your assets, property, debts, parenting of children, the time with children, child support and spousal support. Those things are separate from what this article discusses. If you want to divorce AND do all those other issues, you are not doing a simple divorce. You would need to do a Form 8 Application to the court, if you live in Ontario, if you can not get a Separation Agreement done on all those issues. We purely mean the “un-marrying” you part in this blog.
If you are looking to divorce and you have your Separation Agreement done, that settles the issue of the children and the child support, then you should be able to divorce. We say should, as sometimes you may benefit from not divorcing. Pension issues, health benefits issues and other things may cause you not to want to get a divorce done. You can potentially do yourself some serious financial harm by getting a divorce done. In other situations, you may do your children financial harm by not divorcing.
The best thing to do is get some quick legal questions answered before you choose to go ahead with a divorce.
For the purpose of this discussion, we assume there are no pension issues, no health benefit issues and no children.
Divorce law is federal law, meaning the process of a divorce is set by laws that were created by the Government of Canada. They are not provincial laws. That being said, you have to go through your court in the province in which you live to get a divorce. You have to be living in one area of the province for a year to be able to start a divorce. If you have moved around quite a bit, then learn to live in one place for a bit or you will not be starting your divorce until that one year is up. That’s the law of jurisdiction. You must be in the jurisdiction of the court you choose to start the divorce. If you live in Kingston, you cannot choose a court in Toronto – it needs to be Kingston. There is another option. If your spouse, the one you are seeking the divorce from, lives in another part of the province and has been there for a while, you can start the court case for the divorce in their jurisdiction.
In short, it is best to prepare yourself by living in one area for a year.
To proceed with a divorce, after you pick the court, you must first choose if you are doing a simple divorce or a joint divorce. That may not be as easy as it sounds. Just because you can do the filing online does not mean you pick either one. If your separated spouse does not agree with the divorce and will not sign any documents, you are best not to choose a joint divorce. You need them to work with you to get a joint one done. If you are doing it on your own, then you choose the simple divorce.
We are assuming that your separated spouse will agree to your request for a divorce. You are best to find this out in advance – again, be prepared. You do not want to waste time and money starting a simple divorce, only to have to withdraw it later and file a Contested Divorce through a Form 8 Application because you found out your separated spouse filed an Answer to your Simple Divorce.
This boils down to being fully prepared. We have helped clients who have fallen into that case, where they started with a Form 8A, but did not speak to their separated spouse in advance on getting the divorce done, and finding out an Answer was served and the client now had to do a full Contested Divorce. That can be an administrative headache that you can avoid for yourself. They key there is to ask yourself if all of those other issues are sorted, if yes, then your simple divorce should be able to proceed.
Before you go further, get a certified copy of your marriage certificate if you do not have the original certificate. You must file it with the court to go ahead. If you have to ask for it from the province in which you were married, that can take 4-6 weeks, depending upon backlog at the time. Get the certificate first, then start your divorce.
Once you have your simple divorce issued you then need to serve it. Another example of preparing yourself here, as if your separated spouse knows the service is coming (and they agree) you can serve your application for divorce with the price of a stamp. After they are served, they have 30 days to file any response to your divorce claim (or 60 days if they live outside Canada or the USA).
After that, you send the court the Divorce order and the court then imposes a mandatory 31 days wait period after the order is signed for the divorce to be final. After that you apply for the Certificate of Divorce. If your divorce is contested, it will take much longer to be completed. If it is uncontested, sometimes you have have the divorce done in 4 months.
Get prepared before you start. If you have any questions at all, even a short 15 minute call to us can settle your mind that you are starting things on the right track. Talk to us.
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