Divorce Decree in Ontario: Legal Overview and Process

What is a Divorce Decrees in Ontario

A divorce decree is a formal judgment issued by the court that legally dissolves a marriage. A Divorce Decree is an official legal document that marks the end of a marriage. In Ontario, the divorce decree is the final step in the divorce process, signifying that the divorce has been legally granted by the court.

Once a divorce decree is issued in Ontario, the former spouses can move forward with their lives, with clear legal boundaries and responsibilities established.

How a Divorce Decree Finalizes a Divorce in Ontario

In Ontario, a divorce decree is the last step in the divorce process. After filing for divorce and attending any necessary court hearings or mediation, a judge will review the case and, if all conditions are met, grant the divorce.  The divorce decree confirms that both parties are no longer legally married and binds them to the agreed or court-ordered terms.

Difference between a Divorce Decree and a Separation Agreement

While both a divorce decree and a separation agreement deal with the dissolution of a relationship, they serve different purposes. A separation agreement is a legal contract created between spouses that outlines the terms of their separation, such as child custody, property division, and spousal support. It can be made before or during the divorce process and does not end the marriage legally. Instead, it is an agreement on how the couple will manage their affairs while separated.

Divorce Process in Ontario

Filing for Divorce in Ontario

Filing for divorce is the first step in officially dissolving a marriage in Ontario. Before doing so, it’s important to meet the eligibility criteria and decide the type of divorce that best suits your situation.

Eligibility Criteria

To file for a divorce in Ontario, certain eligibility criteria must be met:

• Residency Requirements: At least one spouse must have lived in Ontario for a minimum of one year before filing the divorce application.
• Grounds for Divorce: In Canada, including Ontario, the only grounds for divorce are marital breakdown, which can occur through:
  • A one-year separation (the most common reason).
  • Adultery (one spouse has committed infidelity).
  • Cruelty (physical or emotional abuse making it intolerable to continue living together).

Types of Divorce: Contested vs. Uncontested

In Ontario, there are two main types of divorce: contested and uncontested.

• Uncontested Divorce: This is when both spouses agree on all key aspects of the divorce, such as child custody, property division, and spousal support. An uncontested divorce is typically faster and less costly, as there are no disputes to be resolved in court. The divorce decree is usually granted more smoothly when the divorce is uncontested.
• Contested Divorce: In a contested divorce, the spouses disagree on one or more issues, such as child custody or financial support. This type of divorce often requires more court involvement, mediation, or negotiation, and can take longer to finalize. A contested divorce ends with the court making a ruling, and the terms are outlined in the final divorce decree.

Separation Period in Ontario

Before applying for a divorce decree, couples must generally undergo a separation period. This is a mandatory waiting period intended to ensure that the decision to divorce is final.

Ontario’s Mandatory One-Year Separation Period

In Ontario, couples must be separated for at least one year before they can file for divorce based on separation. The one-year period can include living in the same house, provided they live “separate and apart,” meaning they no longer share a conjugal relationship. During this period, couples can work out agreements regarding child custody, spousal support, and property division, which can later be included in the divorce decree.

The separation period is the most common basis for divorce in Ontario. Even if the couple reconciles briefly during this time, as long as it is less than 90 days, the one-year separation period will still count.

Exceptions for Immediate Divorce: Adultery or Cruelty

There are exceptions to the one-year separation rule for immediate divorce in cases involving adultery or cruelty:

• Adultery: If one spouse has committed adultery, the other spouse can apply for an immediate divorce without waiting for the one-year separation period. However, proof of adultery may be required, which can complicate the process.
• Cruelty: If one spouse has inflicted physical or emotional cruelty, making it unbearable for the other spouse to live with them, an immediate divorce can be granted. Like adultery, cruelty must be proven to the court, which may require additional evidence or documentation.

Obtaining a Divorce Decree in Ontario

Court Procedures for Obtaining a Divorce Decree

To receive a divorce decree in Ontario, you must file your divorce application with the Ontario Superior Court of Justice. This court has jurisdiction over family law matters, including divorce applications.

How to File for Divorce in the Ontario Superior Court of Justice

The first step in obtaining a divorce decree is filing an application for divorce with the Ontario Superior Court of Justice. You can file individually (unilateral application) or with your spouse (joint application), depending on whether the divorce is contested or uncontested.

• Uncontested Divorce: If both parties agree on the terms, such as child custody, support payments, and property division, a joint application is filed. This process is typically faster and requires fewer court appearances.
• Contested Divorce: If there are disputes between the parties regarding any aspect of the divorce, an individual application is filed. This type of divorce often involves more court hearings and can take longer to finalize.

Documents Required for a Divorce Application

To file for a divorce in Ontario, several documents are needed:

• Form 8: Application (Divorce): This form outlines your request for divorce and the issues you want the court to resolve, such as custody, support, or property division.
• Form 36: Affidavit for Divorce: This affidavit confirms that you meet the legal grounds for divorce, such as living separate and apart for at least one year.
• Marriage Certificate: A copy of your marriage certificate must be submitted to confirm the marriage’s legal standing.
• Separation Agreement: If applicable, a copy of your separation agreement should be included, outlining the terms agreed upon by both parties.
• Financial Statement (if seeking support): If you’re asking for spousal or child support, you will need to provide financial disclosure, including income and assets.

Steps Leading up to the Issuance of a Divorce Decree

Once your documents are filed with the court, several steps must be completed before a divorce decree is issued:

1. Filing the Application: You must submit the required forms and supporting documents to the court clerk. The application is then served to your spouse (if not filed jointly).
2. Response from the Spouse: If the application is uncontested, the process continues smoothly. In contested cases, the spouse has 30 days to respond to the divorce application.
3. Review by the Court: For uncontested divorces, the judge reviews the documents to ensure everything is in order. In contested cases, hearings may be required to resolve disputes.
4. Issuance of the Divorce Decree: Once the judge is satisfied that all legal conditions are met, the divorce decree is issued, legally finalizing the divorce.

Timeline for Receiving the Divorce Decree

The timeline for receiving a divorce decree in Ontario varies based on whether the divorce is contested or uncontested, as well as other factors that can affect court proceedings.

How Long It Typically Takes from Application to Receiving the Decree

• Uncontested Divorce: If both parties agree on all terms, the divorce process is generally quicker. Once the application is filed, it can take anywhere from 6 to 12 weeks to receive the final divorce decree. The timeline may vary depending on the court’s workload and how promptly the necessary documents are submitted.
• Contested Divorce: In cases where the spouses disagree on key issues, the process can take significantly longer. Contested divorces may require multiple court appearances, mediation, or negotiations, which can extend the process to several months or even years. The divorce decree is only issued once all disputes are resolved, either through settlement or by court order.

Factors That Can Delay the Issuance of the Divorce Decree

Several factors can delay the issuance of a divorce decree in Ontario:

1. Incomplete Documentation: Missing or incorrect documents can cause delays in the processing of your application. Ensure all forms are correctly filled out and filed with the appropriate court.
2. Contested Issues: Disagreements over child custody, spousal support, or property division can lead to lengthy court battles, prolonging the timeline for the divorce decree.
3. Court Backlog: Depending on the court’s schedule and caseload, it may take longer for a judge to review your case, especially in busier regions of Ontario.
4. Financial Disputes: If financial disclosures are incomplete or if there are significant disagreements over asset division or support, the court may require additional time to resolve these matters before granting the divorce decree.
5. Delays in Serving Papers: In cases where one spouse is difficult to locate or refuses to cooperate, delays can occur in serving the divorce application and progressing through the legal process.

Contents of a Divorce Decree

Finalization of Divorce Terms

When a divorce decree is issued, it officially finalizes all terms related to the divorce. These terms are either agreed upon by both parties in an uncontested divorce or decided by a judge in contested divorces. The decree ensures that all parties are bound to the outlined arrangements.

Confirmation of Division of Assets, Spousal Support, and Child Custody

The divorce decree provides a final, legally binding confirmation of several key aspects:

• Division of Assets: The decree outlines how marital property, financial assets, and debts are divided between the former spouses. This includes bank accounts, real estate, personal belongings, and any other joint property.
• Spousal Support (Alimony): If spousal support is required, the divorce decree will specify the amount, frequency, and duration of the payments. This is designed to ensure that one spouse is not unfairly disadvantaged after the marriage ends.
• Child Custody and Support: For couples with children, the decree will detail child custody arrangements, including which parent will have primary custody, visitation rights, and parental responsibilities. It will also address child support payments, including how much one parent must pay to the other to support the child’s upbringing and education.

All these terms are legally enforceable, meaning either party can take legal action if the other does not comply with the conditions set forth in the decree.

Effect on Legal Status

Beyond finalizing the practical aspects of a divorce, a divorce decree also has a significant impact on the legal status of both individuals. Once issued, it officially changes the marital status of both spouses, granting them the legal rights associated with being unmarried.

How the Divorce Decree Legally Ends the Marriage

The divorce decree serves as the final legal confirmation that the marriage is over. Once signed by a judge and issued by the court, it officially ends the marital relationship, meaning both individuals are no longer legally bound as spouses. The marriage is dissolved, and each person is free to live separately and make independent legal and financial decisions.

Impact on Remarriage Eligibility and Name Changes

• Remarriage Eligibility: Once a divorce decree is issued, both parties are free to remarry. The decree acts as proof that the previous marriage has been legally dissolved, a requirement for anyone looking to enter into a new marriage in Ontario or elsewhere.
• Name Changes: The divorce decree may also include provisions for name changes. While not mandatory, some individuals choose to revert to their maiden name or a previous surname after divorce. If requested, the decree can include an official order allowing one or both parties to change their names. This allows individuals to update their legal documents, such as passports, driver’s licenses, and social security records, more easily.

Difference between a Divorce Order and a Divorce Decree

While both are critical legal steps, they serve distinct roles in finalizing the dissolution of a marriage. Below is a detailed clarification of how these legal terms relate to each other and their respective roles in Ontario’s family law system.

Clarification of How a Divorce Order Leads to a Divorce Decree

A divorce order is a legal decision made by a judge, granting the parties the right to divorce. It typically comes after the court has reviewed the divorce application and all related issues, such as property division, child custody, and spousal support, have been resolved—either through mutual agreement or by court ruling. A divorce order signifies that the judge has approved the divorce, but it does not immediately finalize the dissolution of the marriage.

In Ontario, once a divorce order is issued, there is a mandatory 31-day waiting period before it becomes final. After this period, the divorce officially concludes, and a divorce decree is issued.

Legal Finality of a Divorce Decree Compared to Other Court Orders in Family Law

A divorce decree holds more legal finality than other types of court orders in family law, such as temporary or interim orders. Once a divorce decree is issued, it represents the end of the marriage, with all associated legal matters concluded. Here’s how it differs:

• Divorce Order: A divorce order grants permission for the couple to be divorced, but it is not final until the waiting period has passed. During this time, the spouses remain legally married and are not eligible to remarry. The divorce decree is issued after this order becomes final.
• Other Court Orders in Family Law: Throughout the divorce process, the court may issue several orders related to child custody, spousal support, or property division. These orders can be temporary or subject to change before the divorce decree is finalized. For example, a temporary custody order may be in place while the divorce proceedings are ongoing, but the final terms of custody will only be confirmed in the divorce decree.
• Legal Finality of the Divorce Decree: Unlike other court orders, a divorce decree is final and legally binding. It cannot be changed or contested unless there are exceptional circumstances, such as discovering fraud or other legal errors. Once issued, it signifies the absolute end of the marriage, and both parties are free to remarry.

What Happens After Receiving a Divorce Decree

Legal Rights and Responsibilities after Receiving a Divorce Decree

The divorce decree lays out the final terms regarding property division, financial obligations, and parenting arrangements. Both parties are legally bound by these terms and must fulfill their responsibilities as outlined in the decree.

How the Decree Affects Property, Finances, and Parenting Arrangements

• Property: The divorce decree will confirm how assets and debts are divided between the parties. This includes real estate, bank accounts, pensions, and other jointly held assets. Both parties must comply with the division outlined in the decree, which may include transferring ownership or liquidating assets to satisfy the terms.
• Finances: Any financial support, such as spousal support or child support, will be detailed in the decree. The decree will specify the amount, frequency, and duration of payments. Failure to meet these financial obligations can result in legal enforcement actions.
• Parenting Arrangements: If children are involved, the divorce decree will confirm custody arrangements, including which parent will have primary custody, the visitation schedule, and any shared decision-making responsibilities. Both parents are expected to follow the parenting plan laid out in the decree.

Enforcement of Divorce Terms

Once a divorce decree is issued, both parties are legally obligated to comply with its terms. If one party fails to follow through—whether in matters of child custody, spousal support, or property division—the other party has legal options to enforce the decree.

Steps to Enforce the Divorce Terms

• Spousal or Child Support Enforcement: If one party fails to make spousal or child support payments as ordered by the court, the other party can seek enforcement through Ontario’s Family Responsibility Office (FRO). The FRO ensures that support payments are made and can take legal action, such as garnishing wages or seizing assets, if payments are not met.
• Custody or Access Enforcement: If one parent is not complying with the child custody or access schedule outlined in the decree, the other parent can file a motion with the court to enforce the terms. This can result in the court issuing additional orders to ensure compliance or, in some cases, modifying the custody arrangement to protect the child’s best interests.
• Property Division Enforcement: If a spouse refuses to transfer property or assets as ordered in the divorce decree, the court can issue additional orders to ensure the transfer occurs. This may involve seizing property or appointing a third party to manage the transfer.

Appealing or Modifying the Divorce Decree

While a divorce decree is considered final, there are certain circumstances under which it can be modified or appealed. This typically occurs when there are significant changes in circumstances or if one party believes the court made an error during the initial proceedings.

Grounds for Appeal or Modification

• Changes in Circumstances: A modification of the divorce decree may be requested if there are substantial changes in circumstances that affect the original terms. For example, if one party loses their job or experiences a significant increase or decrease in income, they may request a modification to adjust spousal or child support payments. Similarly, if the child’s needs change or one parent relocates, a modification to the custody arrangement may be sought.
• Appealing the Divorce Decree: If one party believes that the court made a legal error in issuing the divorce decree, they may file an appeal. Appeals must be filed within a specific timeframe after the decree is issued, and the appealing party must demonstrate that the court’s decision was unjust.

Common Issues with Divorce Decrees in Ontario

Unresolved Financial Matters

One of the most common issues that arise after a divorce decree is related to unresolved financial matters. Incomplete or inaccurate financial disclosures during the divorce process can create long-term financial disputes, particularly if one spouse was not fully transparent about their assets.

Addressing Incomplete Financial Disclosures

When one party fails to provide complete financial information, it can lead to unfair settlements, particularly concerning property division, spousal support, and child support. If incomplete financial disclosures come to light after the divorce decree is issued, the affected party may request a modification or appeal of the decree based on the newly discovered information.

To address this issue:

• Seek Legal Recourse: If it is discovered that one party concealed assets or provided inaccurate financial information, the other party can petition the court to reopen the case and adjust the financial terms.
• Financial Audits: In some cases, a financial audit may be necessary to uncover hidden assets or income. The court can order such an audit to ensure fairness in property division and support payments.

Child Custody and Support Disputes

Another common issue post-divorce involves child custody and support disputes. While the divorce decree outlines the custody arrangement and support obligations, disputes can arise over parenting time, changes in a child’s needs, or disagreements regarding support payments.

Potential Conflicts in Custody or Support After the Decree

• Custody Disputes: Even after the court finalizes the custody arrangement, conflicts may arise if one parent believes the terms are not in the child’s best interest, or if circumstances change (e.g., one parent moves or the child’s needs shift). Such disputes can be emotionally charged and may require mediation or additional court intervention to resolve.
• Support Payment Disputes: In some cases, disagreements over child support can occur, particularly if one parent’s financial situation changes, leading to late or missed payments. Both parties are legally obligated to adhere to the child support terms outlined in the decree. However, modifications can be requested if significant life changes arise.

To address these issues:

• Mediation or Court Intervention: Parents experiencing custody disputes or conflicts over support payments may seek mediation to resolve the matter outside of court. If mediation fails, filing a motion to modify the decree in court may be necessary to reflect new circumstances.
• Child Support Enforcement: If a parent fails to pay child support, the affected party can request enforcement through Ontario’s Family Responsibility Office (FRO), which has the authority to garnish wages, seize assets, or take other measures to ensure compliance.

Non-compliance with Divorce Terms

Non-compliance with divorce terms is another major issue that can arise after a divorce decree is issued. This occurs when one party fails to meet their legal obligations, whether related to property division, spousal support, or child custody. Non-compliance can lead to significant financial and emotional distress for the affected party.

What to Do If One Party Does Not Comply with the Terms of the Decree

• Property Division Non-compliance: If one party refuses to transfer property or assets as outlined in the divorce decree, the other party can petition the court to enforce the terms. The court may issue additional orders, such as garnishing wages or appointing a third party to oversee the asset transfer.
• Spousal or Child Support Non-compliance: When a spouse or parent does not make the required support payments, the Family Responsibility Office (FRO) can be called upon to enforce payment. The FRO has the authority to take actions such as garnishing wages, intercepting tax refunds, or seizing property.
• Custody Non-compliance: If one parent does not adhere to the custody or visitation schedule, the other parent can file a motion in court for enforcement. In extreme cases of non-compliance, the court may modify the custody arrangement to better serve the child’s interests.

To address non-compliance:

• File a Motion for Contempt: If a party continuously fails to comply with the terms of the decree, the other party can file a motion for contempt of court. This legal action can result in penalties for the non-compliant party, including fines or jail time in severe cases.
• Request Court Enforcement: For persistent non-compliance, requesting court intervention can ensure that the divorce terms are followed. This can involve a judge issuing new orders or increasing the severity of enforcement measures.