Detailed requirements for using ezDivorce to obtain your Ontario divorce.
Requirements:
Residency – Either you or your spouse’s current regular place of residence must be in Ontario and must have been so for at least one consecutive year at the time the divorce is filed. If this is not the case, you cannot start the divorce until at least one of you has been residing here for a full year unless your divorce is a ‘non-resident, same-sex divorce’ (contact us for more details).
Divorce Only – ezDivorce only deals with ‘simple’ divorces – your only request can be for a divorce. If you have disagreements as to division of property, support and/or child-related issues and want the court to deal with the disagreements, ezDivorce is not for you (unless you choose to file a separate application regarding any of those other issues). If you use ezDivorce to file your divorce and your spouse contests it or makes his or her own claim(s), our services end there. You will have to continue on your own or get a traditional “full service” divorce lawyer.
Uncontested Divorce, Simple Divorce or Joint Divorce? – You cannot file an ‘uncontested divorce’ – you file a simple divorce that becomes ‘uncontested’ if your spouse does not respond to the filing. In a ‘joint divorce’, neither spouse is suing the other for divorce – you are both applying to the court for a divorce. Click here to learn more.
Legal Basis for Divorce – To use ezDivorce, your divorce must be based on ‘separation’ (read more below) or adultery, but only where the cheating spouse will admit the adultery in writing. Read this for more information about divorce based on adultery.
Separation – The Divorce Act requires that you have been ‘living separate and apart’ for one year. ‘Living separate and apart’ does not necessarily mean in separate residences. ezDivorce has filed many divorces where the spouses are still sharing the same residence for economic or child-related reasons for several years after ‘separation’. Also note: You can file your divorce before your one-year separation is complete – however, the divorce cannot be finalized until the year is up.
Separation Agreement – The courts do not required that you have a separation agreement – however any lawyer would recommend that you have one – particularly where you have children and/or own property that must be divided. ezDivorce can draft a separation agreement for you for $200 + hst. Click here for details.
Children – The Divorce Act requires the court “to satisfy itself that reasonable arrangements have been made for the support of any” minor children. Some judges may force you to at least request an order for support if your spouse is not paying. ezDivorce recommends that you have a separation agreement that sets out issues with respect to child custody, access and support – however it is not a legal requirement in order to get a divorce. Please read this very important information about child support and divorce.
NOTE: If you are the support payor and you are paying less than what the Federal Child Support Guidelines say that you should be paying, it is very likely that the court will not grant your divorce unless you agree to the proper level of support or unless you have a written agreement or written consent from your spouse with a very good explanation for the lower amount of support. ezDivorce will not process a divorce where the Applicant is not paying proper child support in most situations. See link in previous paragraph.
Documentation
Marriage Certificate – Generally, you need your original or government issued copy of your marriage certificate. If you lost the original or don’t have an official replacement, you must try to get a replacement – if you were married in Canada or the USA, you must obtain a replacement. If your marriage took place elsewhere, you can get your divorce even if you are unable to obtain a replacement. Click here to obtain a replacement Ontario marriage certificate if you lost your original. If your marriage certificate is in a language other than English or French, you must have it translated by a certified translator.
Prior Divorce/Death – Per the Divorce Act, if your current marriage took place outside of Canada, you must provide the court with copy of proof of your prior divorce. However, many courts in Ontario (including Toronto) require this if your marriage took place outside of Ontario. In practice, the same issues about foreign marriage certificates applies – if you tried but can’t obtain a copy of your foreign divorce certificate, you will still get your divorce.
Serving Spouse
Unless special permission is obtained by the court (see below), your spouse must be given a copy of the divorce papers after they are filed with the court (unless you are filing a joint divorce where both spouses sign the forms together).
The ezDivorce standard fee includes serving your spouse by regular mail – this requires your spouse’s cooperation by signing an enclosed acknowledgment of receipt form and mailing it back to us. If your spouse will not do this, he/she must be served in person (in which case there is nothing for your spouse to sign). The person who hands the papers it to your spouse must then swear an affidavit (which we will prepare) that he/she served your spouse. You cannot serve your spouse yourself without a prior court order. If you need a professional process server to serve your spouse, you must arrange and pay for this yourself (we’ll let you know how).If your spouse evades personal service, we must, at an additional fee, get permission from the court for an alternative method of service (e.g. by e-mail, Facebook, etc.).
Missing Spouse – If you have no idea where your spouse is and have exhausted all reasonable means of finding him/her, you must get special permission from the court to get your divorce. Click here to learn more.