Divorce is often a difficult and emotional process, and it can be even more complicated when only one spouse wants to end the marriage. In Ontario, the law provides clear procedures for obtaining a divorce even when your spouse does not agree.
Below, we explain the laws governing divorce in Ontario, what happens when divorce is not mutual, and how an experienced Toronto family lawyer can help guide you through the process. If you have questions about your specific circumstances, schedule a consultation with our legal team at Gelman and Associates today.
Understanding Divorce Eligibility in Ontario
Divorce in Ontario is governed by the federal Divorce Act. You may be eligible to apply for a divorce under the Divorce Act if:
- You were legally married in Canada or in another country, and
- You plan to permanently separate from your spouse with no intention of reconciling, or you have already separated and do not intend to reunite, and
- At least one spouse has lived in Ontario for at least one year immediately before filing the application.
Once the eligibility criteria under the Divorce Act are satisfied, the sole ground for divorce is the breakdown of the marriage. This breakdown can be established in one of three ways:
- Separation for at Least One Year: The most common ground for divorce is that the spouses have lived separate and apart for at least 12 months, demonstrating the irretrievable breakdown of the marriage.
- Adultery: A divorce can be granted if one spouse has been unfaithful. However, this ground is rarely used and can be difficult to prove, as it usually requires concrete evidence or a direct admission from the other spouse.
- Cruelty: Divorce may be granted if one spouse has subjected the other to physical or mental cruelty, making it intolerable to continue living together. Like adultery, claims of cruelty are uncommon and often challenging to establish in court.
Can One Spouse Decide to Separate Without the Other’s Consent?
Separation is often a necessary step toward obtaining a divorce under Ontario law. In Ontario, separation is unilateral. This means that once one spouse has determined there is no prospect of reconciliation and clearly communicates that intention, the parties are legally considered separated, even if the other spouse does not agree. The unwillingness of one spouse does not prevent the other from moving forward with separation.
It is important to note that the date of separation is significant. This date can affect child support, spousal support, property division, and pension rights under Ontario law.
Steps to Initiate a Unilateral Divorce in Ontario
If you are considering a unilateral divorce, there are several steps you can follow to ensure the process is legally sound:
- Consult a Family Lawyer: First and foremost, seeking legal advice is highly recommended. A family lawyer in Ontario can help clarify which documents and records you need to gather, avoid unintended legal or financial consequences, and provide guidance on possible timelines and next steps.
- Document Your Separation: You must show that you and your spouse have been living separate and apart for at least one year. Ontario law recognizes that this can occur even under the same roof. If you cannot agree on the separation date, a judge may determine it based on evidence such as changes in living arrangements, separate finances, absence of sexual relations, a lawyer’s letter confirming formal intent of separation, or other behaviour showing the marriage had ended.
- File a Divorce Application: Once the necessary criteria for divorce are met, the next step is to formally file a divorce application with the court. This application informs the court that you are seeking a divorce and officially starts the court process. You will need to provide details about your marriage, the date of separation, and the grounds for divorce. With the guidance of a Toronto divorce lawyer, you can ensure that your application is complete, accurate, and properly submitted, helping to avoid delays or complications in your case.
- Serve the Divorce Papers: The application must be officially served to your spouse. It is recommended to use a professional process server to provide an Affidavit of Service, which confirms your spouse has been properly notified.
- Response Period: Your spouse has 30 days from the date of service, to serve and file a formal response (Answer) if they were served in Canada or the United States, and 60 days if they were served outside Canada or the United States.
- If They Ignore The Papers: If your spouse does not respond to the divorce application within the required timeframe, the divorce can proceed as uncontested. The court will review your application and supporting documents, and if everything is in order and there are no unresolved issues, a judge may grant the divorce without your spouse’s signature.
- If They Fight It: The divorce becomes contested, and you may need to attend court hearings to settle issues such as spousal support, child custody, or property division, with the court making the final decisions. While they can delay the process by disputing issues like property or support, they still cannot stop the legal dissolution of the marriage itself.
- Obtain the Divorce Order: After the court confirms that all matters are settled, a divorce order will be granted, officially ending the marriage.
Considerations in Unilateral Divorce
Initiating a divorce when only one spouse wants to end the marriage can present a range of unique challenges.
Conflict may arise around spousal support, property division, or decision-making responsibility if children are involved. In some cases, the non-consenting spouse may disagree over parenting arrangements or support, leading to lengthy court proceedings and increased legal costs.
The process can also take a significant emotional toll when only one spouse wants to end the marriage. Feelings of guilt, anger, or uncertainty may arise, and the process can be mentally draining.
Despite these challenges, the courts are well-equipped to handle unilateral divorces. Judges carefully evaluate the evidence, make decisions in the best interests of the children, and ensure that both spouses’ legal rights are fully protected throughout the process.
Contact Gelman & Associates for Guidance on Unilateral Divorce in Ontario
Going through a divorce when only one spouse wishes to end the marriage can be challenging, but it can be successfully managed. At Gelman & Associates, our experienced family lawyers assist clients at every stage of the divorce process. If you are considering divorce and your spouse does not agree with your decision to separate, contact Gelman & Associates today to schedule a confidential consultation.
