Missing Spouse Divorce in Ontario
Yes, you can get a divorce in Ontario even when you can’t find your spouse…
Under most circumstances, your spouse must be given notice of the divorce and a chance to contest it in order to get a divorce in Ontario. 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.
Rule 6(21) 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.
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.
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 must 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. You must also search for him/her online (Google, Facebook, etc.).
Our fee for preparing and filing the motion material is an additional $400 on top of our regular fee. If the court rejects the motion, but gives instructions on what other steps the judges wants you to do, there may be a fee of $50 to $100 to prepare and file the additional material. (Add 13% HST to all fees.) Note: These fees do not include 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 over 100 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 in Ontario, the only way you can get a divorce in Ontario is if you can locate your spouse and have him or her served. If not, you will have to file where you live.
Also note: You may want check with to the Central Registry for Divorce Proceedings in Ottawa to see if your missing spouse previously obtained a divorce in Canada without telling you before investing money in this process. See http://www.justice.gc.ca/eng/fl-df/divorce/crdp-bead.html.