Two people sit at a kitchen table in Brampton with one application form between them. They have been living apart for more than a year, the house is sold, and they agree on the children’s schedule. Neither wants to have the other served with court papers by a stranger at the front door. For couples in that position, Ontario’s joint divorce application exists for a simple reason: it lets both spouses ask the court for the same thing at the same time.
The joint route is less well known than the ordinary kind of divorce, where one spouse applies and the other is the respondent. It removes some steps, but it also has features that catch people out, because each spouse takes on responsibility for what the application says. A joint application is a good fit for many couples and a poor one for others, and the difference usually has little to do with how friendly the separation feels.
What follows is general information about Ontario procedure and is not legal advice. Court forms and filing practices are revised from time to time, so check the current requirements before you sign anything.
What makes an application “joint”
Rule 36 of Ontario’s Family Law Rules gives a spouse two ways to start a divorce case: by filing an application that names the other spouse as a respondent, or by filing a joint application with no respondent. In a joint case, the two of you are co-applicants. You both sign Form 8A, and the court is told that you are asking together.
Two practical results follow from that structure:
- Nobody has to be served. With no respondent, there is no process server, no affidavit of service and no 30-day period waiting for an answer.
- Everything depends on consent. The Rules say that in a joint application, the divorce and any other order sought can be made only with the consent of both spouses.
The second point is the real test of whether this route suits you. A joint application is a way of presenting an agreement to the court. It has no mechanism for resolving a disagreement. If a dispute surfaces halfway through, the application has nothing to offer it.
The legal requirements do not get any lighter
Applying together does not relax the Divorce Act. A judge still has to be satisfied of the same things as in any other divorce:
- Residence. At least one of you must have been habitually resident in Ontario for a year immediately before the application is started. A spouse living abroad can still be a joint applicant so long as the other meets this test.
- Breakdown of the marriage. For nearly everyone this means living separate and apart for at least one year. You can file before the year has run, but the divorce cannot be granted until it has.
- A valid marriage. The court needs the marriage certificate or registration, or an explanation of why getting one is impractical.
- No earlier divorce proceeding. The court obtains a clearance from the federal Central Registry of Divorce Proceedings before the file goes to a judge.
Reconciliation attempts are allowed for up to 90 days in total without restarting the one-year period. Living in the same house does not automatically defeat a separation either, although you should be ready to explain how your lives actually changed. Couples who cannot afford two households in Peel’s rental market often face this question, and it is worth writing down when things changed while the dates are fresh.
Be careful about the date
Because both of you are swearing to the facts, there can be a temptation to settle on a separation date that is convenient. Please do not. Section 11 of the Divorce Act requires the court to satisfy itself that there has been no collusion. An agreement to give the court an invented date or fact to get a divorce sooner is exactly what that word covers. A date that has been shaded may also come back to hurt one of you, since the separation date usually sets the valuation date for property and can affect support.
The documents, and who signs what
The provincial guide to family court procedures sets out a package for joint applications. In broad terms, you will need:
- Form 8A, signed and dated by both of you, with the required number of copies
- A continuing record, which is the court’s file for your case, with its table of contents
- The original marriage certificate, translated by a certified translator if it is not in English or French
- Form 36, Affidavit for Divorce, which each spouse completes and swears separately before a commissioner for taking affidavits
- Form 25A, the draft divorce order, typed and setting out every term you want included
- Stamped, addressed envelopes, one for each spouse, so the signed order can be mailed
- Form 35.1, sworn by each spouse, if you are asking for an order about decision-making responsibility or parenting time
- A draft support deduction order and its information form, if the order will include child or spousal support
Rule 36(5.1) is plain that on a joint application the Form 36 evidence comes from the applicants, plural. Your spouse cannot swear on your behalf, and you cannot sign for a spouse who is out of the country. Spouses living abroad should plan how they will have their signature and oath properly taken where they live, and should check the requirements before relying on a document sworn overseas.
The Ontario guide also lists optional supporting material, such as a separation agreement, minutes of settlement, earlier court orders, or Child Support Service calculation notices. If those documents explain how you reached your terms, filing them can answer a judge’s question before it is asked.
You can file at the Superior Court of Justice at 7755 Hurontario Street or use the province’s online family court filing service. The fees are the same either way.
What it costs
Divorce fees are charged at the Superior Court level and are payable in stages, and the amounts are updated from time to time, so confirm the current figures with the court or on the province’s fee page before you file. A joint application does not change what has to be paid, although it does remove the cost of a process server. The province also collects a $10 clearance fee for the federal registry, and its online filing page says that this fee cannot be waived.
If paying the fees is out of reach, you can ask for a fee waiver certificate. Think about who is eligible, and how the fees will be divided between you, before the first form goes in. Two people who have a sensible agreement in every other respect can still end up arguing over who pays the second instalment.
Where children enter the picture
Children are the most common reason a tidy joint application comes back with questions. Under section 11 of the Divorce Act, a judge must be satisfied that reasonable arrangements have been made for the support of any children of the marriage, having regard to the applicable guidelines. If that has not been done, the judge is required to hold off on granting the divorce.
Agreeing between yourselves is not enough on its own. Rule 36 requires the Form 36 evidence to include information about those arrangements, with the income and financial information required by section 21 of the Federal Child Support Guidelines attached as exhibits.
So, if your plan is that one parent pays less than the table amount, or nothing at all, you need to be ready to explain why. A hypothetical: two parents agree that because one of them kept the house, no child support will be paid. They might see that as fair. A judge will ask whether the arrangement is reasonable for the children, and a trade of that kind may not satisfy the test. Parents can depart from the guidelines by agreement in some circumstances, but the reasoning should be set out in the material. Our page on child and spousal support gives some more background.
Parenting terms need similar care. A joint application lets you ask for a parenting order by consent, and the court must look at the terms against the child’s best interests. Vague wording that seemed friendly when you signed it, such as “parenting time as agreed”, can be hard to work with when something goes wrong. It may also create difficulties with schools or passport offices.
When a joint application is a poor fit
The joint form is designed for real agreement. Some situations call for a closer look before choosing it.
One spouse feels pressured. A joint application requires both signatures, and a signature given under pressure is a bad foundation for anything. If there has been family violence, intimidation or financial control, please get private legal advice first. You should be able to do that without the other spouse present.
Financial disclosure has not happened. You may feel you know what your spouse earns and owns, but you are about to finalize a stage of your separation. Agreements made without proper disclosure can be open to challenge later, which helps neither of you.
Your spouse is unreliable with paperwork. The process needs both of you to complete and swear documents. If one person is likely to delay, ignore requests or change their mind, a simple application (where one spouse applies and serves the other) may finish sooner even though it adds a service step.
You are relying on the other person’s goodwill for the rest. If the unresolved matters are large, such as a business, overseas property or a pension, deal with those first or get advice on what a divorce does to your deadlines.
If a joint application is underway and your spouse stops cooperating, the case cannot produce an order without their consent. You will probably need to take a different route, which can mean starting again with a new form and serving your spouse. Speak with a lawyer or the Family Law Information Centre about the best way to do that before you assume that the first filing can be converted.
What the divorce does not settle
A divorce order changes your marital status. Unless the order or a separate agreement deals with them, these questions remain open.
Property. Married spouses in Ontario may have an equalization claim under the Family Law Act. That claim generally must be started within two years of the divorce, or six years after separation, whichever comes first. A joint divorce obtained quickly can start a clock that one spouse knew nothing about. If you have not already dealt with property in a signed and witnessed agreement, look at that before you file.
The home. Rights to possess a matrimonial home are tied to being a spouse, so the divorce can change your position if you are still sorting out who lives there or how a sale will happen.
Spousal support. If it is not addressed, it does not disappear as a possible issue, but delay can weaken a claim, and you should get advice on your position.
Wills, insurance and benefits. A divorce can affect how a will treats a former spouse, while beneficiary designations on insurance and registered plans may need to be changed by you. Coverage under a spouse’s workplace health plan commonly ends or changes. For couples where one spouse sponsored the other for immigration, the undertaking does not end because of a divorce, so get immigration advice if this applies.
After you file
Once the clerk is satisfied that the package is complete, it goes to a judge, usually without either of you attending. Under Rule 36(7), the judge may grant the divorce as drafted, have the documents returned for corrections, or, after giving you the chance to file another affidavit or come to court, change the draft order or refuse the divorce.
Corrections are common and are rarely a disaster. The usual causes are small: a name that does not match the certificate, a missing exhibit, or an explanation of child support that leaves the judge with questions. Read the two affidavits side by side before you swear them. In a joint case, two affidavits that tell slightly different stories are an avoidable problem.
When the order is signed, the divorce usually takes effect on the thirty-first day after it was made. Applying jointly does not remove that wait. Section 12 of the Divorce Act allows the court to shorten the period only in special circumstances and where the spouses agree not to appeal. After the divorce takes effect, either of you can ask for a certificate of divorce (Form 36B), which is the document you will use to prove your status and to remarry. Do not plan a wedding around a filing date.
A few questions to ask each other first
Before you complete Form 8A, try going through these together:
- Is the date of separation one we can both swear to without any hesitation?
- Have we exchanged income information, and does the child support figure follow from it?
- Is everything we want from the court written into the draft order, in words a stranger could understand?
- Have we each spoken to our own lawyer, or knowingly decided not to?
- Have property and spousal support been addressed in a signed and witnessed agreement?
- Who is responsible for gathering documents, paying fees and following up with the court?
One lawyer cannot properly advise both spouses when their interests differ, so a joint application does not mean joint legal advice. Even a short consultation for each of you can catch a problem before it becomes a rejected file or a regrettable agreement. If you would like to talk over your options, you can read about our divorce services or get in touch with the office.