First, we’ll detail the Joint divorce application process (where spouses file for divorce together) and then tell you how the process differs for a Simple Divorce Application (where one spouse files for divorce).
Should We Choose a Joint or Simple Divorce Application?
Choosing between filing a Joint or Simple divorce application is often based on convenience - if both spouses can arrange to meet to sign the papers, a joint divorce can be easier. In some cases, both spouses are willing to sign the joint papers, however it may be inconvenient because, for example, one of the spouses lives overseas. In these cases, a Simple application can be completed and served to the Respondent spouse, who will then respond without opposing what has been set out by the Applicant spouse. See our post comparing the two applications for more information.
Step 1: Plan and Agree
The first step in any uncontested divorce is to agree on the major issues brought up by your divorce, namely: dividing your assets and determining support payments. These are the issues that cause the most difficulty for divorcees and consequently these are the issues that are often fought over in front of a judge. Save yourself the time and money by taking control of your own divorce and deciding these issues for yourself. Our previous two posts discussed have discussed how to do exactly that. Check those out here:
Once you’ve come to an agreement on these major issues, it is best to formalize them in a Separation Agreement. This agreement replaces your need to go to court and strengthens the legal standing of the agreement you and your spouse have come to. A separation agreement is a legal document and so it is best to have a professional create yours for you.
Step 2: Gather Important Information and Documentation
The next thing you will need to do is gather important information and documentation, such as:
Your Court Address
Use the Ministry of the Attorney General's Court locations tool to search for the closest Superior Court of Justice location. The Superior Court of Justice is the only court that can handle divorce applications
Your Marriage Certificate
Get your original Ontario marriage certificate. If you do not have yours, contact Service Ontario to get a copy. Note that you can continue your divorce application without your marriage certificate. If you weren't married in Ontario, or you are otherwise unable to obtain a copy of your certificate, it is not a major problem - but to make the process as easy as possible we highly recommend obtaining your marriage certificate if possible.
You’ll need to provide the court with two stamped and pre-addressed envelopes, one for you and one for your partner, so that the court can send you your divorce order once it is finalized. Get these envelopes prepared now to save time later.
Step 3: Complete Government Forms
To complete your divorce, you will need to complete the following 4 forms required by the Government of Ontario/Canada. This may seem daunting, but the forms are simpler than you may expect. Thistoo's Resolve feature was designed to make this process as simple and easy as possible. Here’s a description of each form’s purpose and some useful information to help you:
Form 8A Application for Divorce
This form is used to apply for an uncontested divorce. One party will be listed as the Applicant and one as the Respondent, regardless of whether the application is made jointly or not. Make sure to print three copies; one for the court, one for you, and one for your spouse. Completing this form is relatively straightforward; however, we’ll address a few important sections:
Claims: Check the boxes in the Claims section of page 4 if you are claiming your right to spousal support, child support, custody, etc. On page 5 you need to provide the details of your agreements regarding these claims (ex. Write down how much the monthly child support payment is).
Important Facts Supporting the Claim for Divorce: This section of page 4 identifies your reason for divorce: separation, adultery, or cruelty. The vast majority of people choose the Separation option; note the government requires that you and your spouse have lived separate and apart for at least one year. On page 5 you will describe the facts that support your reason for divorce.
Form 36 Affidavit for Divorce
This form is a sworn or affirmed document that affirms information about your marriage certificate, children, and any arrangements you’ve made regarding child support, custody, and access. Having your marriage certificate handy will make filling out this form much faster.
Form 25A Divorce Order
This is a simple form that needs to be filled out for the court clerk. This is essentially a draft of your final divorce order. Once your divorce is approved, the clerk will send back this form to notify you of your final divorce order.
Form 26B Affidavit for Domestic Contract
This form requires you to attach your separation agreement and swear or affirm that the agreement has not been disregarded by any court or changed by a subsequent agreement between the parties. Either spouse can file this form, and only the spouse who files it needs to sign it.
Step 4: Go to the Courthouse and File for your Divorce
Now, it’s time to go the courthouse to start the formal application process. Remember to bring: your marriage certificate, two envelopes, your separation agreement, and all the forms you’ve just filled out.
When you get to the courthouse, the first thing the court clerk will ask you to do is create a Continuing Record. Your Continuing Record is kept at your courthouse in a court file. The Family Law Rules require that you file every document in your case in your Continuing Record so that a judge can easily find these documents when they are needed. For more information about the Continuing Record, please see these government guidelines.
The next thing the clerk will ask for is Form 8A Application for Divorce. Again, remember to bring three copies with you. The clerk will need your marriage certificate and they will have you fill out a very simple “Registration of divorce proceedings” form at the courthouse.
Once you have filed Form 8A, the court will provide you with a court file number, and potentially a court date. You will need to update the rest of your forms with this information (in the top right corner of each form enter the Court File Number you’ve been provided).
*Stop here and see Step 5 if you are filing a Simple Divorce Application.
Next you will have to sign your affidavits. You’ve already filled out the information on your two affidavits (see Form 36 and 26B), but now you have to sign them in front of the court clerk.
Now that you’ve filled out all the required forms, it’s time to file them. Proceed to file both Affidavits along with Form 25A Divorce Order. Don’t forget to file them in your Continuing Record. This is the last step in the process if you are filing a Joint Application. You’re almost officially divorced!
Step 5: Serve your Spouse (skip this step if you are filing a Joint Application)
If you are filing for divorce without your spouse, the process is only slightly different than what is described above. The process still begins with completing your divorce application Form 8A. Then, instead of filing the application forms together, only one spouse does this (the Applicant spouse) and the forms are then served to the other spouse (the Respondent) who has 30 days to respond (or 60 days if served outside Canada or the United States).
Along with Form 8A, the Applicant spouse must also serve the Respondent spouse a blank copy of Form 10, and the entire contents of their Continuing Record. The easiest way to serve your spouse is by using a process server, which you can find by searching for "Process Server" in your local Yellow Pages.
The Respondent spouse has the opportunity to oppose the divorce if he or she wishes by completing Form 10. If your Ex responds and disagrees with anything you've stated in your application (such as spousal or child support, or division of assets), the divorce becomes contested. Unfortunately, we don't yet support contested divorces at Thistoo.
If your Ex does not respond, you can still finalize your divorce. Simply continue the process by submitting your Affidavit for Divorce Form 36 and Divorce Order Form 25A at the courthouse. The courts will have a judge review your documents and if they are satisfied, grant your divorce.
You have successfully completed the divorce application process! The divorce order (Form 25A) you filled out and submitted will be mailed back to you and your spouse using the self-addressed envelopes you provided to the court. After waiting 31 days, you can request your divorce certificate from the court. This certificate is required if you wanted to remarry. Please note that it costs $19 to obtain the certificate.
One Final Note
Rest assured that Thistoo has taken every precaution to ensure your forms will be filled out error free. However, in the case of rejection, Thistoo will be there to help you every step of the way and remedy whatever is causing the delay.