Yes, you can get a divorce even when
you can't find your spouse...
Under most
circumstances, you must have a good current address for your spouse in
order to get divorced in Ontario, Canada. This is because your spouse
must be given notice of the divorce and a chance to contest it. The
following Family Law Rules deal with cases where you can't find your
spouse:
Rule
6(15) SUBSTITUTED SERVICE
The court may, on motion without notice, order that a
document be served by substituted service, using a method
chosen by the court, if the party making the motion,
(a) provides detailed evidence showing,
(i) what steps have been taken to locate the person to be
served, and
(ii) if the person has been located, what steps have been
taken to serve the document on that person; and
(b) shows that the method of service could reasonably be
expected to bring the document to the person’s attention. O.
Reg. 114/99, r. 6 (15).
Rule 6(16)
SERVICE NOT REQUIRED
The court may,
on motion without notice, order that service is not required
if,
(a)
reasonable efforts to locate the person to be served have
not been or would not be successful; and
(b)
there is no method of substituted service that could
reasonably be expected to bring the document to the person’s
attention. O. Reg. 114/99, r. 6 (16).
If your spouse last
lived in Ontario, and if he or she is a citizen or permanent resident
and you don't have solid proof that he or she has left the country, you
are more likely to get an order for substituted service, rather than
having the court dispense with the service requirement. Examples of
substituted service are service on a close family member who you believe
is in touch with your spouse, or service by placing an advertisement in
a newspaper of general circulation in the area where your spouse last
resided. Service by advertisement can get expensive: if your spouse last
resided in the GTA, the required ad would cost around $285 in the
Toronto Star. Note: A judge in Toronto once required an
Applicant to run the ad for 3 days, one of which had to be a Saturday
(total cost for the ads was around $900). This has only happened once on
an ezDivorce case. Normally, you only have to run the ad one time.
The court will not
grant the motion unless you can satisfy it that you have done everything
possible and within your financial means to locate your spouse. The
following are suggestions on what to do: You should make prepare a list
of all contacts with all known relatives and friends (names, phone
numbers, relation and response). You should also search the phone book
(online is fine) in the city that your spouse last lived in and confirm
that all persons with the same name (last name and at least first
initial) are not your spouse. If your spouse last lived in Ontario, and
you have no reason to believe that he or she has left the country, you
will in most cases be required to obtain the last known address held by
the Ontario Ministry of Transportation. You cannot do this on your own,
however we can do this search for you.
Our fee for preparing
and filing the motion material is $300.
If the court rejects the motion, but gives instructions on what other
steps the judges wants you to do, there is a fee of $100 to $200 to prepare and file
the additional material. (Add 13% HST to all fees.) Note:
These fees do not include running costs of effecting 'substituted
service' if applicable (newspaper advertisement, etc.).
There is no
guarantee that the motion will be granted, however in most cases the
judge who rejects the motion will tell you what additional steps will
satisfy the court.
ezDivorce
has processed approximately 75 of these types of motions with a 100%
success rate (excluding applications that were abandoned by the
applicant).
Note: This option is not available if you live outside of
Ontario. If you do not live here, the only way you can get an Ontario
divorce is if you can locate your spouse. If not, you will have to file
where you reside.
Click here to read what our customers are
saying
