Posted by DivorceLine in Please note that the facts supplied herein is not legal guidance and is supplied for informational and educational purposes only (and is present only to the time this write-up was written). If you need to have legal guidance with respect to Acquiring an uncontested divorce in Ontario, you should really seek professional assistance.
This write-up is about Obtaining an uncontested divorce in Ontario. We assume that a couple has signed a separation agreement to settle all family problems between them (e.g. equalization, the matrimonial property, child and spousal support, etc.). Even though separation agreements resolve family matters when you separate, they do not legally end your marriage. The only way to do this is to get a divorce and only a court can give you a divorce.
To proceed with an uncontested divorce, a party will have to have to complete and submit the divorce forms, pay the needed court fees, and follow the court rules and procedures. It is normally advisable to retain legal counsel to prevent prospective pitfalls in Getting a divorce that will not later be contested.
Divorce
The Federal Divorce Act governs divorces in Canada. The only ground for divorce in Canada is “breakdown of the marriage” [s. 8(one) of that Act]. A “breakdown of the marriage” consists of having lived separate and apart for at least a year, the commission of adultery by one of the spouses after the marriage, or one spouse having treated the other with physical or mental cruelty of such a type as to render continued cohabitation intolerable [s.8(2) of the Act].
Documentation
The Family Law Rules governs the procedure for Obtaining a divorce. To begin the procedure, either spouse can file an application [this party is known as the applicant] naming the other spouse as a respondent or both spouses can file a joint application with no respondent [s. 36(one) of those Rules]. The following documents should really also be filed: a marriage certificate and, if applicable, a report on earlier divorce instances started by either spouse [s. 36(4) of those Rules].
If the respondent files no answer, or files one and later withdraws it, the applicant should certainly file an affidavit (Form 36) that confirms that all the information and facts in the application is correct [s. 36(5) of those Rules]. Also, three copies of a draft divorce order will need to be supplied (Form 25A) with a stamped envelope addressed to every party [s. 36(6) of those Rules].
Obtaining the Divorce Certificate
When these documents have been correctly filed with the court, the court clerk will prepare a certificate (Form 36A) and current the documents to a judge for review. If the judge accepts the clerk’s certificate, then he/she shall sign and mail it out to the parties. The quantity of time it takes to obtain the clerk’s certificate depends on how busy the court is: estimates range from two weeks to five months, depending on the jurisdiction (i.e. city in which you live).
Once a divorce “takes effect” it has legal effect throughout Canada [s. 13 of the Divorce Act]. Unless unique circumstances exist and a court orders otherwise, a divorce takes effect on the thirty-initial day after the day on which the order granting the divorce is rendered [s. 12(one) and (2)]. Once the divorce takes effect and supplied no appeal has been filed, either party can obtain a divorce certificate [Form 36B] for a little fee (e.g. $20). Parties can obtain this document on a identical-day basis in most courts and will need to have this certificate in order to remarry.
Lawyer’s Duties
Each lawyer acting on behalf of a spouse in a divorce proceeding really should follow the provisions of the Divorce Act that have as their object the reconciliation of spouses. Lawyers should really discuss with the spouses the possibility of reconciliation just before the application is signed (which includes the availability of marriage counseling or advice facilities that could be able to assist the spouses in achieving reconciliation).
The lawyer does not must comply with this section where the circumstances of the case are of “such a nature” that it would clearly not be suitable to do so [s. 9(one) of that Act]. The lawyer will need to also discuss with the spouse the advisability of negotiating matters that could be the subject of a support or custody order and to inform him or her of the mediation facilities recognized to the lawyer that may possibly be able to assist the spouses in negotiating these matters [s. 9(2) of that Act].
Fees
According to our newest report on legal fees in Toronto (wherein we telephone interviewed 500 lawyers over a 3-month period about their legal fees), the typical legal price (excluding government fees) for an uncontested divorce is about $one,000. Government fees are about $400-$500 (in Toronto at the current time, for example, it costs $167 for the first application, $280 for a judge to review the application, and $19 for the divorce certificate).
