Uncontested divorces:

A guideline for the self-represented client

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This material was prepared in 1996 by a volunteer and is presented here for demonstration purposes. It is not sanctioned by the court. We cannot accept responsibility for any errors. You should seek legal advice with respect to any legal issues other than the divorce itself.

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Contents:

• Introduction
• Grounds for divorce
• Marriage certificate
• Application for Divorce
• Affidavit of Service
• Affidavit of the Applicant
• Main Action Record: Setting your divorce down
• Certificate of Divorce

Introduction

"Uncontested divorces" refers to a simplified procedure for a divorce in which the only issue is that of a divorce, there are no corollary issues and, therefore, the parties do not have to appear in court and do not need lawyers. The divorce proceeds on the basis of information provided by the applicant in a series of documents which forms the Main Action Record.

The following are documents you will need to prepare and submit to the courthouse for filing:

1. Notice of Hearing (Form 30) (three copies);
2. Application (Form 8) (three copies);
3. Affidavit of the Applicant (one copy);
4. Affidavit of Service (Form 12) with attached Exhibit "A" Acknowledgement of Service (Form 1) (one copy);
5. Divorce Judgment (Form 34) (five copies);
6. Certificate of Clerk (Form 33) (one copy);
7. Two self addressed stamped envelopes are required (addressed to each of the parties);
8. Requisition (Re: to issue Certificate of Divorce) (one copy);
9. Affidavit of the Applicant (Re: no appeal pending) (one copy);
10. Certificate of Divorce (Form 35) (one copy).

The above-mentioned documents are available from the Superior Court of Justice Family Court Branch forms page. The format of the above documents cannot be changed. If you do change the format or do not fill in the form completely, your documents will not be accepted for filing by the court clerk.

The following publications can be ordered from the Ministry of the Attorney General:

• Divorce Guide for Ontario
• Divorce Forms for Ontario

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Grounds for divorce

Under the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) Permanent Breakdown of the marriage is established only if:

1. The spouses have lived separate and apart for at least one year immediately preceding the divorce proceeding and were living separate and apart at the commencement of the proceeding. If you and your spouse reconciled and resumed living together for a period of time totalling 90 days, you cannot proceed on the basis of a one year separation and your time period for calculating your period of separation starts over again.
2. The spouse against whom the divorce proceeding is brought has,
   1. committed adultery; or
   2. treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

Spouses are not entitled to rely upon their own misconduct as a basis for obtaining a divorce.

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Marriage certificate

The Certificate of Marriage is to be filed with the application at the time of issuance unless the application states that it is impossible to obtain the Certificate or that the certificate will be filed before the hearing.

If you do not have a copy of your marriage certificate you must complete an Application for Certificate or Search to obtain a copy of same. Complete the appropriate section of the application and mail the application to:

THE DEPUTY REGISTRAR GENERAL
PO BOX 4600
THUNDER BAY ON  P7B 6L8

along with appropriate fee. Call 1-800-461-2156 for fee amount. Copy of Application for Certificate or Search will be available on this site in the fall of 1996.

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Application for Divorce

At time of issuance of the Application for Divorce you will be required to pay the following fees:

1. $10.00 for Clearance Certificate payable to the Receiver General for Canada;
2. $125.00 to issue application payable to the Minister of Finance.

When completing the application your name and spouse's name must appear on the application exactly as they appear on the Certificate of Marriage. This is very important because once the application has been issued and you later find out that you have not used exactly the same spelling of your's or your spouse's name as it appears on your marriage certificate you cannot change it without the court's permission, in which case you may need the assistance of a lawyer.

When completing the application, if any of the paragraphs are not applicable to your situation simply state N/A. Do not leave them blank. One exception is with regard to paragraph 3 with respect to children of the marriage. If there are no children of the marriage do not put N/A simply state: "no children of the marriage".

In answer to paragraph 6 respecting any other court action(s) between you and your spouse (the respondent), insert the level of the court and court file number. You also need to insert a full description of any prior or existing court proceedings between yourself and your spouse (the respondent). Also list any orders that were made and attach a copy as a schedule to your application. If you have any interim orders it is not enough to simply enclose orders. Advise what is going to happen or what is happening.

If the only relief sought in an application is a divorce, costs inclusive of assessable disbursements and GST. will be awarded on a party and party basis in a fixed amount if:

1. the specific amount is claimed in the application (Form 30);
2. the amount claimed is $450.00 or less; and
3. there is some evidence in the supporting affidavit material filed for the granting of the divorce that the respondent has the ability to pay costs.

Costs in an amount greater than $450.00 may be claimed and awarded if the respondent acknowledges in writing his/her agreement to pay costs in a fixed amount.

The application is the legal document that commences your divorce proceedings. Sign three copies of the application. The court clerk will issue the application by signing an original application and sealing the document with a court seal and trueing up the other two copies. The court clerk will keep one trued-up copy in the court file and return to you the original plus one trued-up copy. The trued-up copy of the application (along with the Notice of Hearing for Divorce) then needs to be served on the respondent by someone other than yourself by:

1. leaving a copy with the respondent; or
2. sending an application together with an Acknowledgement of Service (Form 1) by mail to the last known address of your spouse (the respondent), however, service is only effective if the Acknowledgement of Service or a post office receipt bearing the signature of the respondent is received by you.

Do not serve the original sealed documents.

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Affidavit of Service

The documents must by served on your spouse (the respondent) by someone other than yourself. The person serving the document must ask the respondent to produce identification and complete and sign the Acknowledgement of Service (Form 1). The person that served the Application must prepare his/her Affidavit of Service with attached Acknowledgement of Service (Form 1) as Exhibit "A". If the person refuses to produce identification or refuses to sign Acknowledgment of Service but has identified himself/herself as the person being served, the person serving is to leave the documents with your spouse (the respondent) and specify in his/her Affidavit of Service that said person refused to produce identification or sign the acknowledgement. The Affidavit of Service must also set out the date, time and address of when and where the documents were served. The Affidavit of Service and Acknowledgement of Service attached as Exhibit "A" must be signed in the presence of a Commissioner of Oaths. The courthouse does have commissioners available at the Court counter.

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Affidavit of the Applicant

The Affidavit of the Applicant is a document which sets out the information needed by a Judge to grant your divorce.

You must swear to the truth of the affidavit before a Commissioner of Oaths. The commissioner will ask you to swear that the contents of your affidavit are true. You will then sign the affidavit in front of the commissioner, who will himself/herself sign the affidavit. You will have to provide the commissioner with evidence of who you are, by means of a driver's license or other photo identification.

Where children are involved, the court must be satisfied that reasonable arrangements have been made for the support of any children of the marriage and, if such arrangements have not been made, the court may delay the granting of the divorce until such arrangements have been made. In your affidavit give all particulars with respect to any child support payments. If your spouse (the respondent) is not paying support due to his financial circumstances, you need to satisfy the court that that is in fact the case by giving full particulars of your spouse's financial circumstances. If you do not know your spouse's financial circumstances, stating in your affidavit that you have no knowledge of your spouses' circumstances is not sufficient. Try to find out more particulars and insert as much information as possible.

A copy of the Affidavit of the Applicant to use as an example will be available on this site in the Fall of 1996. It is important to address all of the paragraphs in the said Affidavit.

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Main Action Record: Setting your divorce down

After service of the application has been made on your spouse (the respondent) and if he/she is not defending the application and the 20 days have expired from the date of service, you are then ready to set your divorce down.

Start with the cover page which is called the Main Action Record and which is blue in colour. The second page is the endorsement page which is used by the judge to make his/her endorsement. The third page is the index page. On the index page list the following documents and number each page starting with number 1 at the top right hand corner of the page:

1. Notice of Hearing (original seal);
2. Application (original seal);
3. Affidavit of Service with attached Exhibit "A" Acknowledgement of Service;
4. Marriage Certificate;
5. Affidavit of the Applicant;
6. Divorce Judgment.

The court clerk will require the payment of the $255.00 fee at this time payable to the Minister of Finance. Along with the above Main Action Record also provide to the court clerk the Certificate of Clerk. Two self-addressed, stamped envelopes are also required (addressed to each of the parties) as well as four copies of the Divorce Judgment.

The court clerk will review the Main Action Record and if everything is in order will provide same to a judge for his/her review and consideration of divorce. If the judge grants your divorce the divorce will take effect 31 days from the date that he/she signs the Divorce Judgment. Once the judge has signed your Divorce Judgment, the court clerk will send one Divorce Judgment to you and one to your spouse (the respondent) in the self-addressed, stamped envelopes that you provided at the time of filing your Main Action Record. You are not yet divorced. Once you receive the Divorce Judgment with the judge's signature on the judgment, you have to wait the 31 days (from the date the judgment was granted) to allow for any appeals. You are not free to remarry at this time.

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Certificate of Divorce

When the 31 days have expired, prepare the following documents in order to obtain your Certificate of Divorce which makes your divorce final:

1. Requisition (to issue Certificate of Divorce);
2. Affidavit of the Applicant (no appeal pending);
3. Certificate of Divorce.

The above-mentioned documents will be available on this site in the Fall of 1996.

A cheque for $17.00 is payable to the Minister of Finance to issue the Certificate of Divorce.

Remember, your Certificate of Divorce is an important document and should be stored in safekeeping.