Divorce Laws in Ontario

Canada's federal Divorce Act (s. 8) recognizes one ground for divorce: marriage breakdown. Marriage breakdown can be proven in three ways: 1. Separation of at least one year: The spouses have lived separate and apart for at least one year immediately before the divorce judgment, with the separation still existing at the time of the application. This is by far the most common method. 2. Adultery: One spouse has committed adultery. The spouse who committed adultery cannot use this ground. 3. Physical or mental cruelty: One spouse has treated the other with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

In practice, nearly all Ontario divorces proceed on the one-year separation ground. You can file the application before the year is up, but the divorce judgment cannot be granted until at least one year of separation has elapsed. The date you moved out — or established separate lives within the same home — begins the separation clock.

Under section 3(1) of the Divorce Act, either spouse must have been ordinarily resident in Ontario for at least one year immediately before the divorce application is made. "Ordinarily resident" means your habitual and customary place of living — your home, not just temporary presence.

If both spouses live in different provinces, the Act has rules about which court takes jurisdiction. If both provinces have pending applications, the earlier-filed application generally takes precedence.

Ontario's Ontario Regulation 114/99 governs family court procedures, and the Family Law Rules (O Reg 114/99) specify procedural requirements. Most Ontario divorces proceed through the Ontario Court of Justice (for property and parenting matters) or the Superior Court of Justice (for divorce orders).

Ontario does not use community property. Instead, the Family Law Act (s. 5) creates a right to equalization of net family property. At the end of the marriage, the spouse with the higher Net Family Property (NFP) pays half the difference to the other spouse.

Net Family Property = (value of all property at date of separation) minus (value of all property at date of marriage) minus (debts and liabilities at separation). Certain property is excluded from NFP, including property received as a gift or inheritance from a third party during the marriage (if not commingled with marital property), proceeds of a life insurance policy, and damages for personal injuries.

The matrimonial home has special rules: regardless of who owned it before the marriage, both spouses have equal possession rights during the marriage (s. 19), and it cannot be excluded from the equalization calculation even if inherited.

Spousal support in Ontario can be ordered under both the federal Divorce Act (s. 15.2) and the Ontario Family Law Act (s. 33). The Spousal Support Advisory Guidelines (SSAG), though not legally binding, are widely used by Ontario courts and lawyers to calculate the appropriate amount and duration.

Factors courts consider include the length of cohabitation, the roles assumed during the marriage, the effect of those roles on earning capacity, and economic disadvantage resulting from the marriage or breakdown. Three objectives guide spousal support: 1. Compensatory support: Addresses economic disadvantages caused by the marriage (e.g., career sacrifice to raise children). 2. Non-compensatory support: Need-based support where the lower-earning spouse cannot meet basic needs. 3. Contractual support: Based on a domestic contract (prenuptial or separation agreement).

Duration under the SSAG is typically half to the full length of the relationship for medium-length relationships, and indefinite for long marriages (20+ years or where the relationship period plus the recipient's age exceeds 65).

Following the 2021 amendments to the Divorce Act (s. 16.1 onwards), Ontario uses "parenting arrangements" rather than custody and access. The two key concepts are: - Decision-making responsibility: Authority to make major decisions about the child's education, health, religion, and significant extracurricular activities (formerly "legal custody"). - Parenting time: The time a child spends with each parent (formerly "access" and "physical custody").

The Divorce Act (s. 16) requires that parenting arrangements be made exclusively in the best interests of the child, with the primary consideration being the child's physical, emotional, and psychological safety, security, and well-being. Courts must consider each parent's ability to care for the child, the history of family violence, the child's relationships with each parent and siblings, and the child's views and preferences (given appropriate weight based on age and maturity).

Ontario's Children's Law Reform Act (CLRA) governs parenting arrangements for non-married parents, using the same terminology as the amended Divorce Act.

Divorce in Ontario begins with filing an Application for Divorce (Form 8A) in the Superior Court of Justice. If children or property are involved, additional forms are required (Financial Statement Form 13 or 13.1). The application is served on the respondent spouse.

The respondent has 30 days (60 days if outside Ontario) to file an Answer (Form 10). If the application is uncontested and both spouses agree, a Joint Application (Form 8A) can be used.

Ontario courts require that both spouses certify there are no custody or access (parenting arrangement) disputes with children still in issue. For uncontested divorces, the divorce judgment can often be obtained by written submission without a court appearance (the "desk order" process).

The divorce judgment takes effect 31 days after it is made (the appeal period), unless the court waives this period.

Filing fees for a divorce application in Ontario are $167 for an Application for Divorce (if no other claims) or $232 for a joint application. If there are property or support claims, additional fees apply.

Processing fees: $280 for an application without child/support matters, plus $202 for the divorce order itself. Total court fees for a simple uncontested divorce are approximately $450-$650 CAD.

Service of process can be arranged through a process server ($75-$150 CAD) or by mail with an acknowledgment form. Lawyer fees vary widely — contested Ontario divorces cost an average of $15,000-$30,000+ CAD per spouse, while uncontested divorces with paralegal assistance may cost $1,500-$3,000 CAD.