How to file for divorce in Ontario
This guide will show you how to file for divorce in Ontario.
The first part of this guide is applicable to both common law and married couples. It refers to “Applications” in the court process, which are designated forms which start a court proceedings. The second addresses applications to the court to obtain a divorce order, and is only applicable to marries spouses.
You will always want to contact your local courthouse in order inquire about the filing requirements. Each and every courthouse is slightly different. If you are in Toronto, then there are three Toronto courthouses in which you can start your family law case. You should consult with the staff at each courthouse before proceeding to ensure that you are filing in the correct courthouse. You might also consider a Toronto family lawyer to assist you in your case.
How to File For Divorce: Filing the Application
To start a court proceeding, you must file an Application with the court.
An “Application” is used whether or not a couple was married or common law to start divorce or separation proceedings. Typically, in order to start court proceedings, you would use Form 8 (General) to apply to the courts. After filing it with the court, you would have to serve your former partner.
You have to file the Application in the jurisdiction in which you reside. If you have children, you will have to file in the jurisdiction in which the children reside if your divorce includes a claim relating to custody and access or child support.
If your application includes a claim for custody or access, you will additionally file a form 35.1, Affadavit in Support of Claim for Custody or Access. This is true whether or not you were common law or married. If you are responding to a claim for custody and access, you will also have to file a form 35.1.
Please be aware that for custody and access proceedings, persons other than the child’s parents may also apply. The requirements are slightly different for these persons.
In addition to filling out the required forms, you will have to pay the court fees associated with your particular needs.
You will have to serve the documents on the opposing party through a personal means of service. You can use either a process server or mail it to them with a Form 6, Acknowledgement of Service. You will then have to file an Affidavit of Service with the court (Form 6B). If your former partner has started proceedings and has served you with an Application, then you would have to serve and file a Form 10 in Answer to the Application.
Each courthouse has its own rules for how applications are to be filed, filing fees, and how you would contribute to the continuing record. Flipping through both the procedural rules and guides on the continuing record is tedious and difficult. It is faster for you to contact your courthouse to better understand those filing requirements. You may also obtain a family or divorce lawyer to assist you. Please be aware that you do not have to retain a lawyer to represent you for your entire matter. You may contract with a lawyer for what is called a limited scope retainer or unbundled legal services if you need assistance with only a part of your case. If you need help with how to file for divorce, you may also obtain a lawyer’s assistance. At Aaries Family Law, we do provide unbundled legal services depending on your needs and the stage of the case.
In Toronto, you will be choosing between filing in the Superior Court of Justice and the Provincial Courts. There are two provincial courts in Toronto which hear family law issues. One is at 311 Jarvis and the other is at 47 Shepherd Avenue East. The Superior Court that hears family issues is located at 393 University Avenue on the 10th floor. All of these locations are on the subway line.
You may choose to file documents with the court yourself. Or you may hire a process server to do it for you. In Toronto, there are usually lineups at the court. Therefore, lawyers will use a process server to file documents with the court.
If you choose to self-represent, then you will have to comply with the rules. If you choose to obtain a family lawyer to represent you, then you don’t have to worry about any of this, although it will help bring peace of mind to be familiar with the process.
How To File For Divorce (Divorce)
If you wish to obtain a divorce order, ensure that you were married (common law couples cannot obtain a divorce). As a married couple, you can obtain child support, spousal support, custody and access, and matrimonial property division and the matrimonial home without obtaining a divorce. If you are living separate and apart while remaining married, you can apply for these remedies. Ensure that you do in fact want a divorce. Be aware that there are limitation periods for matrimonial property. Once you obtain a divorce, you have 2 years within which to start a proceedings for matrimonial property division. Once you live separate and apart (but are still married) you actually have 6 years within which to pursue a matrimonial property claim.
Once you have determined that you would like to obtain a divorce order, you would fill in a Form 8, General Application form.
If you only want a divorce, and no other remedy you would fill in only Form 8A. See our uncontested divorce guide for more info on how to file for an uncontested divorce. You may also file for a joint divorce.
If you would like a Divorce, and additional court remedies such as spousal support, child support, property division, matrimonial home, etc. Then you would fill in Form 8, General Application.