Some marriages do not end with an argument or a lawyer’s letter. They simply stop. A husband goes back overseas and the phone number stops working. A wife moves out, and within a few years nobody in the family has an address. Then one day, the spouse who stayed in Brampton wants to remarry, or to deal with a house title, or simply to close that chapter, and they discover that a divorce normally starts with handing court papers to the other person.
That requirement is real, but it can be worked around. Ontario’s Family Law Rules allow a judge to approve another way of delivering the documents, and, if there really is no way of reaching the person, to order that service is not required at all. What you must bring is evidence that you tried. The court needs to be satisfied that your spouse is not being kept in the dark for convenience.
Please treat this as general information and not as legal advice. If there are children, property, or a possibility your spouse is in another country, the analysis gets more involved, and it is worth getting advice on your specific facts.
Check that you can get a divorce at all
The missing person does not change the basic requirements under the Divorce Act.
An Ontario court can hear your case if either spouse has been habitually resident in Ontario for at least one year immediately before the application is started. If you have been living here that long, your spouse’s whereabouts do not matter to this requirement.
You also need a recognized breakdown of the marriage. In nearly all cases of this kind, it is established by the spouses having lived separate and apart for at least one year immediately before the divorce is decided, and having been apart when the application was started. A long, unexplained absence usually makes this straightforward to show, but you will still have to give the date you separated and say how you know the relationship is over. Adultery and cruelty also exist as grounds, but they are difficult to prove against someone who is absent, so most people rely on the one-year separation.
You will need proof of the marriage, usually a marriage certificate or registration of marriage. If you cannot get one, for example because the marriage took place abroad and the records are hard to obtain, the affidavit you later file should explain why. Divorces are granted in the Superior Court of Justice, which sits at 7755 Hurontario Street in Brampton for Peel Region.
The ordinary rule, and why it exists
A divorce application is ordinarily served by “special service” under Rule 6, which usually means handing it to the person directly. It cannot just be mailed to an old address. Ontario’s court guides also tell you to have another adult deliver it rather than doing it yourself, and that person later swears an affidavit of service.
Service is about fairness. It gives the other spouse a chance to respond, make a claim, or raise an objection. So any shortcut has to be justified, and the court looks at your request from your absent spouse’s point of view. Could this person have been found with reasonable effort? Would the chosen method actually reach them?
Two routes: substituted service, or no service at all
Rule 6 gives two separate remedies, and picking the right one matters.
Substituted service, under Rule 6(15). The court can order service by a method it chooses. You must provide detailed evidence of what steps were taken to locate the person, and, if they have been located, what steps were taken to serve them. You must also show that the proposed method could reasonably be expected to bring the document to the person’s attention.
An order that service is not required, under Rule 6(16). This is available when reasonable efforts to locate the person have not been or would not be successful, and when there is no method of substituted service that could reasonably be expected to bring the document to their attention.
The test for the second is more demanding, and for a good reason. Consider two hypothetical applicants. The first has a husband she has not seen for six years, but his brother lives in Mississauga and still speaks to him. She has a route to reach him, so she should expect to serve the brother under a substituted service order. The second has a wife who left twelve years ago, with no known relatives in Canada, a dead email address and no online presence after a long search. She may well be a candidate for an order dispensing with service.
Both orders are generally requested by a motion without notice. The obvious reason is that there is nobody to give notice to. That does not mean the request is automatic. Because the other side is absent, the judge will rely entirely on what you say, which is why your evidence must be complete and candid. Omitting a useful lead, such as a cousin who is in touch, could undermine the order later on.
Building your evidence: the search record
The affidavit supporting the motion is the heart of the request. Start keeping a log before you need it, with a date and a result for each step. A vague statement such as “I have tried everywhere” will not do. A strong search record often covers:
- Last known addresses. Attend or send someone to the last address, and ask the current occupants or the landlord for any forwarding information.
- Phone, text and email. Try every number and address you have, and keep screenshots of the bounced emails or undelivered messages.
- Family and friends. Contact parents, siblings, former roommates and close friends. Write down who you spoke to, when, and exactly what they said.
- Social media. Search under different spellings of the name and with known relatives. Save what you find, including any recent activity.
- Last known employer or union. Employers may not reveal details, but they may be prepared to forward a letter.
- Online and public searches. Run simple internet searches, as well as searches of public records you can access.
- Courts and government. If you suspect a custodial sentence or other court involvement, check what you can reasonably check. Government bodies often will not release personal information to you, but it helps to show you asked.
- People abroad. If your spouse may have gone back to another country, contact family or a community organization there, or the people who know them.
A professional skip tracer or process server who has tried to locate your spouse can provide their own affidavit, and that is often quite persuasive. It costs money, so think of it as a tool for a harder case and not an essential first step.
Where you do have a new lead, follow it. Finding your spouse is not a bad outcome. Once you know where they are, you can try ordinary service, and the case can go forward as normal.
Picking a method a judge can accept
If you are asking for substituted service, propose something that fits the facts. Your choice should connect to how the person really lives. Examples of what might be appropriate include:
- Delivering documents to a relative who is in contact with the spouse
- Sending to an email address or a social media account that you can show is currently active
- Mailing to a last known address that is still receiving mail
- Advertising, which Rule 6 allows for by way of a prescribed form (Form 6A), though courts tend to treat this as a more expensive method and one that will only be useful where the spouse is likely to see it
Suggest more than one method when you can. Be prepared to prove the link. A screenshot showing that the Facebook account posted last month is much more useful than a claim that your spouse “used to be on Facebook.” Do not serve by your preferred method until you have the court’s order, and then do exactly what the order says, keeping proof that you did it. The person who carries out the service then swears the affidavit of service.
If your spouse is, or may be, outside Canada
A spouse in another country creates some extra points to think about. Someone served outside Canada and the United States generally has 60 days to respond, instead of 30. In addition, if you know that your spouse lives in a country that has signed the Hague Service Convention, there may be rules about how documents must be sent there, and courts have dealt with the requirement in different ways. Do not assume that a WhatsApp message will be good enough, and do not assume that it will not. This is one point on which a short consultation can save you from having to restart your process later on.
The same concern applies if your spouse has obtained a divorce abroad without you knowing. Check for that where you can, because you might not need a Canadian divorce at all if a foreign divorce is recognized here, although recognition has its own requirements. Equally, if you are unsure whether the person has died, that is a different problem with a different remedy, since a divorce is not the right route after a death. Ontario has a process for obtaining a court declaration of death in appropriate circumstances, under the Declarations of Death Act, 2002.
From the order to the divorce
Once you have an order for substituted service, or an order that service is not required, the rest looks much like a simple divorce:
- Start the application with Form 8A, and pay the filing fees. As of writing, Ontario’s fee page lists $224 to file a divorce application, including the federal divorce registry charge, and $445 when the application is placed on the list for hearing. A fee waiver may be possible if you qualify.
- Serve according to the order, if substituted service was ordered, and file proof.
- If no answer is filed within the time allowed, proceed with an uncontested divorce. You will generally file a sworn Form 36 affidavit and a draft divorce order (Form 25A), along with the certificate of marriage or an explanation about why it is unavailable. Include the order you obtained.
- A judge reviews the file, usually without you attending. The judge may ask for more information.
- If granted, the divorce takes effect on the 31st day after the date of the order, subject to limited exceptions, and you can then ask for a certificate of divorce.
Keep in mind the other deadlines too. A divorce ends certain property rights. Married spouses in Ontario generally have two years from the divorce to make an equalization claim, or six years from separation, or six months after a spouse’s death, whichever comes first. If your spouse reappears later, those timelines can matter for both of you. Our page on divorce has more about the overall process.
Children and money complicate the picture
Before granting a divorce, the court has a duty under section 11 of the Divorce Act to be satisfied that reasonable arrangements have been made for any children of the marriage, with the child support guidelines applied. It can hold up the divorce if they have not. So where there are children and your spouse has disappeared, your affidavit needs to explain what is actually happening with their support. If nothing is being paid because the other parent cannot be found, be open about that. The judge can consider whether the arrangements are reasonable in those circumstances.
A support claim or a property claim against an absent spouse is a further step. A court can make orders even if someone does not respond, provided proper service has been done or dispensed with. However, it is harder to get a good result, and harder to enforce it, against someone nobody can locate. The Family Responsibility Office has some tracing tools when support is being enforced, but its use depends on having an order to enforce. Also note that the divorce does not, by itself, deal with who owns a jointly held home or how the title is transferred. A divorce-only order will not change what is registered on title, so if property is a part of your reason for divorcing, ask about that separately.
How long should you search?
People often ask for a number, and there is not one. No rule says that three months or a year of searching is sufficient. What matters is whether your efforts were reasonable given what you knew. If you have good leads, a judge will expect you to chase them. If the trail really went cold years ago, a focused search with careful records may be enough.
If your motion is refused, it does not usually mean you are stuck. Judges commonly tell applicants what further steps they want to see. You can do that work and try again.
A missing spouse can make you feel your life is on hold because of somebody who is no longer part of it. Most of the work here is organizational, and it starts with a dated list of who you have tried and what happened. If you would like someone to review that list before you file, you can contact our office to arrange a consultation.