Overview of the Divorce Process in Ontario
The divorce process can be intimidating, but this field guide will help you understand the various steps involved in a Divorce. It will also help you to know what to expect as the process moves along.
There is some confusion about the divorce process, largely perpetuated by movies and television. “I’ll see you in court!” and “I’ll take every penny you have!” make for dramatic dialogue on screen, but that’s not how the process works.
A court is the only body that can grant a divorce. An application must be made to the court to obtain a divorce order. A court will only grant the divorce after the parties have been living “separate and apart” after one year.
Often people begin by attempting to negotiate a settlement between the spouses. But, when negotiations fail or are inappropriate because of the circumstances of the couple due to family violence, assault, or abuse of the children, it may become necessary to go to court. Options to avoid court are discussed in Section 5 of this guide.
No-Fault Divorce in Canada
Divorce in Canada is “no-fault,” which means among other things, that you can get a Divorce without blaming yourself or your spouse for ending the relationship. Instead, your grounds for divorce can be that you and your spouse have lived “separate and apart” for one year. Under special circumstances, a court will grant a divorce where the couple has not been separated for one year.
The two special circumstances where a divorce may be granted before a year passes are adultery and cruelty, if either or both grounds can be proven to a judge’s satisfaction.
Other issues that should be dealt with as part of the separation and divorce, include:
- Child custody and access;
- Child and spousal support;
- Possession and ownership of the matrimonial home and other property;
- Equalizing net family assets for married spouses (there is no equalization for common-law couples);
- Life insurance; and
- Other assets such as pensions, RRSPs and TFSAs.
There may be other issues that will have to be dealt with as part of the process, and a court may be asked to rule on some of these other issues.
Moreover, in most cases, a court will only grant a divorce if it is satisfied that proper arrangements have been made for the care and support of the children.
Starting the Divorce Process
Step 1: The Application
Generally, the first step in the Divorce process is the “Application,” a written document submitted to the court to initiate the proceedings.
In the Application, the “applicant spouse’s” lawyer asks the court to grant a divorce (if the parties are married). Also, the lawyer “pleads” – or states the facts – which form the basis for action being requested, amongst other relief such as custody, access, division of property, etc.
This is the opportunity for spouses starting the divorce process to tell the court the story of what they want from the Court, why they think they should get it, and to lay out their view of what will be best for the children.
Because the Application starts a court proceeding, it has to be served on the “responding spouse” by special service. This means that you cannot just mail, fax or e-mail it to your spouse.
Depending on what a spouse is asking for financially, usually an applicant spouse must include a financial statement, which is a court document that lists all assets, debts and income sources. The applicant spouse’s lawyer prepares it stating the applicant spouse’s income, expenses, assets and liabilities. There are different financial statements for couples who are dividing property and for those who are not.
For us to complete your financial statement, you must provide us with a full and accurate financial disclosure. This is taken very seriously by the courts; you must swear under oath that the document is true, which is generally done in our office.
Financial statements must be updated regularly to keep the court informed of any changes in the financial circumstances of a spouse.
Step 2: The Answer
The Answer is how the responding spouse addresses the claims made in the Application.
The responding spouse tells the court if they agree with any of the claims made and adds additional facts they feel that the court should know.
Also, responding spouses are allowed to make their own claims if they feel that the Application omitted key items or wants the court to do something other than what the Application requests.
Responding spouses must submit their Answer within 30 days of receiving the Application.
If they miss the deadline, the applicant spouse can proceed without notifying the responding spouse again. This means that the applicant spouse can go before a judge without the responding spouse, and no evidence from the responding spouse included. Different timelines apply if the responding spouse lives outside of Canada.
This deadline is one of the reasons why it is so important that you retain us as soon as you are served with an Application.
Responding spouses must also submit a financial statement with their answer.
Step 3: The Reply
Once the applicant spouse has received the responding spouse’s Answer they may submit a Reply, which must be done within 10 days of receiving the Answer.
The Reply gives the applicant spouse an opportunity to respond to any new claims raised by the respondent spouse. But the applicant spouse is not permitted to raise any new evidence or claims in the Reply.
Going to Family Law Court in Ontario
There are multiple steps in the court process where you may be required to appear in court.
When you have a court appearance of any kind, it is usually scheduled at a specific time. But your case is not the only one scheduled for that time. In fact, you may be on a docket along with many other cases. This is especially so where court calendars are particularly heavy because there are not enough judges to process all of the cases. Unfortunately, on some days your case may not be called even if it is on the list to be heard.
Step 1: The First Appearance
In some jurisdictions, the court conducts a First Appearance.
At a First Appearance, both spouses and their lawyers meet to schedule the first Case Conference. Most of the time, the first appearance is with a court clerk, and you and your spouse rarely appear before a judge.
Since much of this work can be done outside of court, some jurisdictions allow the parties to mutually waive this step by completing a form. Other jurisdictions require that it be held.
Once the pleadings have been exchanged and submitted to the court, you and your spouse can begin trying to resolve the outstanding issues, via the Court system.
Step 2: The Case Conference
At some point after a First Appearance there will be a Case Conference.
If you are in a jurisdiction that allows parties to waive their First Appearance, the Case Conference will be your first time in court. Before the Case Conference, we and your spouse’s lawyer will prepare a document called the Case Conference Brief. It summarizes the issues in the case and the facts that support your position for each one. The judge prepares for a Case Conference by reading the briefs filed by lawyers for you and your spouse.
A Case Conference is an informal meeting between the spouses, their lawyers and the judge. It has six key purposes:
- Exploring the chances of settling the case;
- Identifying issues that are still in dispute and explore ways of resolving them;
- Ensuring that all relevant documentation has been disclosed and or exchanged between the parties;
- Uncovering areas where “expert evidence” or reports are needed;
- Stating which issues the spouses agree on that will simplify the case; and
- Setting the date for the next step in the case.
In many jurisdictions, this takes place in a courtroom. Lawyers for each spouse present their theory of the case to the judge, who is likely to ask questions to clarify the issues and positions of each party.
Each judge has a different Case Conference style. Most judges give their opinion on the issues and raise options for settlement. The Case Conference is intended to open communication between the spouses in the hope that they come to a settlement.
The Case Conference can also be used to set out timelines and schedules for exchanging documents, and to create a plan to move the case forward.
At the Case Conference, judges will usually not issue any substantive orders in your case. They set timelines and make orders with respect to the production of documents.
In addition to being an integral part of the family court process, Case Conferences must be held prior to bringing a Motion. That is, a judge will not hear a Motion pertaining to an issue that has not been reviewed at a Case Conference. There are some exceptions to this, such as urgent issues.
Step 3: The Settlement Conference
If you and your spouse cannot reach agreement after the Case Conference, another appearance called the Settlement Conference will be scheduled.
Like the Case Conference, the Settlement Conference requires written briefs before appearing in court. They are similar to briefs filed before the Case Conference but must also include a proposal for settling the entire matter.
A Settlement Conference has six main purposes:
- Exploring the chance of settling the dispute or at least narrow the issues involved;
- Ensuring that relevant evidence is disclosed to both sides;
- Settling or at least narrowing issues around any expert evidence either side intends to introduce at trial;
- Obtaining a view of how the court might decide the case, if possible; and
- Estimating the time needed for the trial and scheduling the case on the court calendar.
The procedure for the Settlement Conference is the same as that for the Case Conference, the biggest difference being the judge’s role.
At a Settlement Conference, the judge should be much more actively involved in the process. Specifically, the judge will want to know about attempts the couple made to settle the matter. Judges are also far more likely to provide their opinion on the legal and factual issues in the case.
Step 4: The Trial Management Conference
The Trial Management Conference is usually the last stage of the court process before trial.
Through their lawyers the couple is required to submit their respective Trial Management Conference Briefs in advance. The contents of the Trial Management Conference briefs are very different than previous briefs because the goal of the Trial Management Conference is to determine how much time will be needed for the trial. So, the court is told who each side intends to call as witnesses and how much time they anticipate the trial will take.
Since this is the last stage before trial, in some jurisdictions the judge may makes another attempt to get the couple to settle.
Step 5: The Trial
A trial is very rare in family law.
In reality, fewer than 5% of all family court cases ever proceed to trial so the chances of having a trial in your case are slim. This is partially because the Conferences are designed specifically to get you and your spouse to settle. Also, trials usually last several days and involve a lot of preparation time by the lawyers. Frankly, trials are very expensive for each person.
Before the trial, each lawyer may question the other side.
In addition to calling each spouse as a witness, the complexity of a case may require testimony from one or more expert witnesses on their particular area of expertise. The expert provides a written report to the court. The time spent by the expert either testifying or preparing such a report is charged to the client who requested the expert’s involvement.
Your trial will be scheduled based on how courts are managed in the jurisdiction where you will be getting divorced. In some, trial dates are scheduled among other court matters. In others, there are two months each year devoted entirely to family law trials. In these jurisdictions, trials are held once every six months so you may end up waiting a lengthy time for yours.
To help guarantee that a trial judge is unbiased, a judge who presided over any conferences in your case cannot be a trial judge. This also ensures that settlement discussions are confidential and do have effect on the trial.
Lawyers also must collect all the legal sources that relate to your case and prepare submissions they will make before a judge. Lawyers must prepare to question or cross-examine witnesses. There are also several written documents that must be submitted to the Court before a trial.
A trial typically begins with each party’s lawyer making an opening statement in which they outline their arguments, evidence, and position. Then, the applicant spouse will call there witnesses who are questioned under oath. The respondent spouse’s lawyer may then cross-examine each witness, asking questions to point out inconsistencies or errors in their testimony. Next, the responding spouse calls and examines there witnesses, followed by cross-examination by the applicant spouse’s lawyer. At the end of the trial, lawyers for each spouse summarize their position for the court in a closing argument.
In Ontario, the judge alone decides family law cases so, often, there is no decision at the end of a trial. Instead, the judge takes time to determine the appropriate decision and notifies the parties in writing after the trial. Once that decision is made, it must be turned into a Court Order so that it can be enforced.
A Note About Costs
To ensure the court process is not abused, judges can levy sanctions against a litigant. One of the most powerful sanctions available to the court is costs, which is where a judge orders one spouse to pay some or all of the other spouse’s legal fees.
In the family law system, typically, costs are apportioned by a judge at each step of the case based on the relative success of each party.
Although this is the norm for cost allocation, judges also can award costs where a spouse did not follow court instructions or requirements. For example, if a spouse fails to provide their financial disclosure, the court has been known to require them to pay some or all of the other spouse’s costs.
Questioning: Discovery and Depositions
Either spouse’s lawyer may decide to question the other spouse about issues in the case.
To do this, the lawyer for the requesting spouse must serve the other with a notice setting out where and when the questioning will take place. Typically, questioning is conducted at a lawyer’s or court reporter’s office and is transcribed. Once questioning is complete, either spouse may request a transcript from the reporter. The transcript can be filed with the court so that it can be read into the trial record as evidence. There are fees for using a court reporter and ordering a transcript.
Questioning can be very helpful in settling outstanding issues in a case. Once the lawyers have some of the evidence that would be introduced at trial, it gives them a better idea of how a judge might decide the facts in their case. Often, this brings the spouses closer to resolving their outstanding issues. Also, questioning can result in a spouse agreeing to provide further information.
Dispute Resolution Officer (DRO)
There is an increasing number of Motions to Change in family law cases. Motions to Changes are the Court process started when a spouse or former spouse wants to change an Order or Agreement already made by the couple. This makes it difficult to ensure timely and effective first case conferences.
To address the problem, a select group of established family lawyers are appointed to be Dispute Resolution Officers (DROs). Because of this, the first case conferences for all Motions to Change are now heard by the DRO.
DROs provide litigants in family proceedings, with an early evaluation of their case by a neutral third party. This service narrows the issues in dispute and facilitates settlement between the parties.
The power of a DRO has been expanded but, among other things, a DRO is permitted to:
- Hear a Case Conference on a request to change child and spousal support orders, rather than a judge
- Meet with the parties to determine the issues
- Assist in settlement options for the parties, and
- Determine if the case is ready to go before a judge
The DRO does not have authority to write orders, issue orders or award costs, but a judge presiding at a subsequent conference or motion may rely on the DROs report. Also, if the spouses reach an agreement right before a DRO, this agreement can usually be sent to a judge that day to be made into an Order.
After a DRO case conference, sometimes the process moves directly to a settlement conference. But the spouse’s lawyers are allowed to schedule a case conference or hear a motion in front of a judge as the next step.
End of the Road
Your divorce is granted either after you and your spouse agree on all of the issues and an Application is filed with the court, or following a trial, or prior if permitted by a Court order.
Settlement
If you and your spouse can negotiate a settlement, the lawyers will draft a document called Minutes of Settlement. If you and your spouse are negotiating outside the court process, your lawyers will draft a document called a Separation Agreement. The main difference between Minutes of Settlement and a Separation Agreement is that Minutes of Settlement can usually be made into a court order more easily.
These documents set out the rights and responsibilities that you and your spouse will follow. Once the agreement has been approved by you, your spouse and your lawyers, each spouse signs the document.
The lawyers then send the signed Separation Agreement to the court and have portions of it turned into a Court Order. If the parties do not choose to turn their separation agreement into a court order, they may have to initiate a legal action later if there is a breach of the Separation Agreement.
Before signing a Separation Agreement, it is important to ensure that both spouses make a complete and accurate financial disclosure.
We will explain the agreement to you because you may be taking on significant responsibilities or waiving important rights. If you have agreed to take on these responsibilities or are waiving rights, it will be very difficult to alter the Separation Agreement once it has been signed.
After the Separation Agreement is signed, if support of any kind is an issue in the matter, you should ensure to continue to provide your soon-to-be ex-spouse with updated financial information each year. Although doing so is only required if it is provided for in the agreement or where support is involved, recent court decisions highlight the importance of exchanging these documents regularly. If either spouse fails to do this when required, they risk having costs awarded against them and paying retroactive support.
Court Orders
Any decision made by a court and parts of an executed Separation Agreement can be turned into a court order, if agreed to.
This means that it can likely be enforced in the event of a breach. If the order deals with a monetary award beyond child or spousal support, it can be enforced by garnishing the paying spouse’s income or bank accounts, or by placing a lien against their property. If the order deals with non-monetary issues and your ex-spouse commits a breach, you can bring a motion to find them in contempt. Once a party is found in contempt, they face a variety of sanctions including the possibility of spending time in jail.
If the order deals with child or spousal support, this portion is enforced through Ontario’s Family Responsibility Office (FRO). The FRO has the ability to garnish wages and bank accounts, but it also has more far-reaching powers ranging from suspending someone’s driver’s license and passport to putting them in jail.
Although the FRO is a valuable tool to enforce support payment, it can take months before the FRO begins the enforcement process.
The Final Divorce Order
The divorce order finalizes your divorce. This means that thirty-one (31) days after a Divorce Order is made, you are now considered legally divorced. A Divorce Order is a legal document and should be kept in a safe place. Once thirty-one (31) days has passed, you are legally allowed to obtain a Certificate of Divorce from the Court Office. For one thing, if you ever decide to remarry, you will need the Divorce Order and the Certificate of Divorce, when you apply for a new marriage license.