Divorce Proceedings in Ontario
Divorce can be a difficult and confusing time. Here is a helpful overview of the divorce proceedings in Ontario which will guide you in the right direction for resolving your difficult family law matters.
- Starting the Family Case: To start your family case you will need an application setting out the issues that you are asking the judge to decide upon. The types of applications include:
- General Application (Form 8): This is used when the parties involved cannot agree on how to resolve family matters, including claims for divorce, property, child custody and access, child and/or spousal support, a restraining order, the sale of a home, etc., as well as other matters which cannot be agreed upon.
- Form 8A – Application (Divorce) – This can be a Simple or Joint Application: By indicating that your application is a Simple Application, you are making a claim for a divorce only. By indicating that the application is a Joint Application, the parties file the application together, signifying that they consent to the divorce. The joint application can also be used where the parties agree on family matters such as child custody and access, child/spousal support, or property.
- Form 8D – Application (Adoption): This is used to seek an order to adopt a child.
- Answering the Application: If you are named as the respondent in a family case, you are served with an application, with which you receive a blank Answer (Form 10) allowing you to respond to the claims that have been made within the application. You must serve your answer and file all documents with the court within 30 days of being served with the court Application.
- Financial Statement: A financial statement is a court form where you lay out your financial information including income, expenses, property and debts. A financial statement must almost always accompany your Application or Answer in order for the court to permit you to file your materials, unless there are no claims for property or support. To be filed, the financial statement must have proof of your current earnings and notices of assessment from the Canada Revenue Agency for the three most recent taxation years. If you do not have your notices of assessment, you can call Canada Revenue Agency at 1-800-959-8281 to obtain Income and Deductions printouts for the most recent three taxation years. You can obtain these even if you have not filed tax returns for those years. There are two financial statements under the Family Law Rules; Form 13: Financial Statement (Support Claims), which is used when support is being claimed but there are no property claims, and Form 13.1: Financial Statement (Property and Support Claims), which is required if there are any property claims, regardless of whether there is support being claimed. You can find these forms and any other required forms at www.ontariocourtforms.on.ca. You will also need to update your financial statement at each new stage in your case if the last statement is more than 30 days old.
Note that the application, answer, and financial statements can be done without legal counsel; however having a lawyer can ensure that you understand the processes and receive helpful advice. If you need reliable help in beginning the divorce process, please visit our Contact a Lawyer page.
- Filing Documents: Filing a document means that you give the court a document which the court Rules require you to file or which is relevant to your case and you want the judge to consider. You are required to file every document in your case in a continuing record containing an endorsements volume which includes all of the judge’s and other endorsements made in the case, a documents volume including all of the documents that have been filed in the case, and a table of contents, which is contained in the endorsements volume, listing all documents that have been filed. You must update the table of contents each time you file a document with the court.
- Serving Documents: In a family law case you must give a copy of all forms and documents to all parties and agencies in the case. This is called service. Documents can be served in two ways;
- Special Service Rule: This means that the person who must be served has to be served personally, and it has to be handed directly to them, with rare exceptions. In the case of a claim for divorce, if you are serving the other person, someone other than you must serve the documents on that person. Special service is required whenever you are starting a case (serving an originating document such as a court Application) or in special circumstances such as motions for contempt.
- Regular Service Rule: Regular service means that service can be done by courier (service is effective the next day), by fax to a lawyer who is retained and on record for the other person (service is effective that day if it is done prior to 4:00 pm), by mail (service is effective 5 days after mailing), or in person if you wish, although it is not required. Regular service of documents is appropriate when a person has been served with the originating document. Answers, Case Conference Briefs or other court Briefs, etc. can be served by regular service.
- Required Steps: There are several steps that you must take before the judge can make a decision in your family case;
- First Court Date or “First Appearance”: This usually begins as a meeting with the court clerk who will ensure that each party who must be served has been served with the relevant documents. The court clerk also ensures that the documents have been filed with the court. However, in the case of a Motion to Change in the Toronto court at 393 University Avenue, Toronto, Ontario, a first appearance is actually a court appearance in front of a Dispute Resolution officer, and a case conference brief would have to be served and filed seven days before the date. It is always important to call the court in question to find out what exactly the first court date is, as different courts have different procedures.
- Case Conference: This is usually the first time that you will speak to a judge about the issues in your case. The conference is held to identify the issues that you cannot resolve, discuss the chances of settling your case, and determine if all relevant information has been disclosed. At least one case conference must be held in each family case. If you have a lawyer, your lawyer must also attend the case conference with you.
- Motions: Motions allow either party to ask the court to make temporary decisions on issues. If you are making the motion, you are the “moving party”; the other person is the responding party. A motion can be made any time after the first case conference. There are, however, times when the judge will hear a motion before a case conference, such as in situations of urgency or hardship or situations of procedural, uncomplicated, or unopposed matters. However, the issue of whether a motion is urgent is a strict test in which you should consult with a lawyer before bringing a motion before a case conference. A motion can also be made to change a final order or support agreement made with the court. This is called a motion to change.
- Settlement Conference: Much like a case conference, a judge will listen to the parties attempt to narrow the issues or recommend resolutions. At this stage, a judge will work with the parties to try to achieve a settlement. If no settlement is reached, then the next date is usually a Trial Management conference where the parties agree upon and set deadlines for the filing of documents for trial.
- Trial: If you and your former spouse are not able to resolve the issues on your own, the judge may order the case to a trial. The elements of a family case trial include;
- Trial Record: If you are the applicant or moving party you must prepare a trial record including a table of contents, a copy of the application/motion/answer/response, relevant financial statements, any assessment reports and temporary orders, orders relating to the trial, and the relevant parts of any transcripts you plan on using. The respondent does not need a trial record, unless agreed or ordered otherwise, but can add to it no later than seven days before the start of the trial.
- Witnesses: If you feel that another person would help your case you are allowed witnesses to provide evidence of what they know about your case. This is often discussed at the trial management conference; however notice of your witnesses has to be provided to the other party before trial.
- Process: Each party will have a chance to give the judge a short review of their case. This is an opening statement. Witnesses, if any, are then called to be questioned and state their information. The parties will then give a closing statement summarizing their evidence and telling the judge why an order should be made in their favour. After the closing statements the judge may reach a decision right away or reserve the decision to a later date.
You may represent yourself during the trial; however having a lawyer present is a good idea. Your lawyer can help you understand your legal rights and explain the court process to you. Without a lawyer, you will need to work extra hard to know the Family Law Rules and the court process. If you are in need of a family lawyer for a trial, please visit our Contact a Lawyer page.
- Property Division: The general process of property division in family law in Ontario is called equalization. This consists of two steps;
- Calculating net family property: You and your former spouse must each make a list of your assets at the time of separation and total the value. You must then deduct the value of debts owing at separation, property that you brought into the marriage, gifts you were given, property that you inherited, and damages for personal injury.
- Sharing the family property equally: You must then tell each other the amount of your net family property. The party with the higher net family property must pay the other party half of the difference of the two amounts; this is called an equalization payment and is the most common method of property division in Ontario. However, in some cases if the equalization payment is unfair the court can order a different payment. For example, the court could order your spouse to pay a higher equalization payment if they left out any large debts or got into large debt on purpose when you were married. This could also occur if a marriage was less than 5 years in length.
- Child Custody and Access: When starting a claim for child custody or access you must fill out Form 8: Application (general) and Form 35.1: Affidavit in support of claim for custody or access. When responding to a claim you must complete Form 10: Answer and Form 35.1. Form 35.1 is your chance to tell the court what your plan to care for your child is and why it is acceptable. You can find these forms and more at www.ontariocourtforms.on.ca.
It is important that you always use a lawyer when filing for divorce to ensure that you have the right information and help. Matrimonial issues, procedures and rules are complex and a lawyer can assist you in navigating these difficult issues. If you need more information on divorce proceedings or you need a family lawyer, visit our Contact a Lawyer page for a family lawyer who can provide leading service and representation. For information on the Family Law Rules, visit www.attorneygeneral.jus.gov.on.ca.
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