- Ontario has two separate questions running in parallel: ending the marriage, and resolving property, support and parenting. The second is almost always the longer one.
- An uncontested divorce where everything is agreed is largely a paperwork exercise. A contested one is a litigation file.
- Most family matters settle. The court process is built to encourage that, and several of its mandatory steps exist for exactly that purpose.
- Delay is usually caused by disclosure, not by the court. Incomplete financial disclosure is the single most common reason a file stalls.
Two things are happening at once
People tend to describe the whole process as “the divorce”, but in Ontario a divorce is a narrow legal event: a court order dissolving the marriage. It requires a ground, and in the overwhelming majority of cases that ground is one year of separation.
Everything else, who the children live with, how much support is paid, how property is divided, is a separate set of claims. They are usually brought in the same application, and they are almost always what the argument is really about. It is entirely possible to be divorced while property remains unresolved, and it happens.
Understanding that split explains a lot of what otherwise looks strange about the process, including why a couple who agree on nothing can still be divorced relatively quickly, and why a couple who agree on everything might still wait.
Starting the case
A family case begins with an application filed at the court. It sets out who the parties are, what orders are being asked for, and the facts relied on. The other party is served, and has a period in which to file an answer.
If no answer is filed, the case can proceed on an uncontested basis. If an answer is filed, the matter is contested and moves into the case management track.
One point that catches people out: the court location matters. Family cases are generally started where a party lives, and different court locations run at genuinely different speeds. The same case can move at noticeably different rates depending on where it is filed.
Financial disclosure
Both parties are required to produce a sworn financial statement setting out income, expenses, assets and debts, with supporting documents.
This is where files stall. Disclosure obligations in family law are broad and ongoing, and a party who produces slowly, partially, or not at all can hold up a matter for months. Courts have become less patient with this than they once were, and costs consequences for poor disclosure are now common.
From a practical standpoint, the party who gets their disclosure done early and completely has an advantage. It is difficult to negotiate against someone whose numbers are all on the table, and easy to lose credibility when yours are not.
The conference stages
Contested family cases move through a series of conferences before they ever approach a trial. Broadly:
- A case conference, which organises the file, identifies the real issues and sets a timetable.
- A settlement conference, at which a judge gives a non-binding view of the likely outcome, expressly to promote settlement.
- A trial management conference, which prepares a matter that has not settled for hearing.
These are not formalities. The settlement conference in particular resolves a very large share of cases, because hearing a judge say out loud what a claim is likely to be worth changes positions in a way that letters between lawyers rarely do.
Motions along the way
Separation does not pause life. Someone has to pay the mortgage, children need a schedule, and those questions cannot always wait for a final resolution.
Temporary orders are obtained by motion. A motion is a mini-hearing on a discrete question, decided on written evidence rather than live testimony. Temporary orders for support and parenting are common.
A word of realism: temporary orders have a way of becoming the reference point. A parenting schedule that operates for a year is a schedule a court will be reluctant to disturb without good reason, because by then it is the children’s normal. What is agreed or ordered early tends to matter more than people expect.
Settlement, and why most cases get there
The great majority of family matters resolve without a trial, through negotiation, mediation, collaborative practice, or at a conference.
That is not a failure of nerve. Trials are expensive, slow, and hand the decision to someone who will spend a few days learning a family they will never meet again. Settlement lets the people who actually have to live with the outcome shape it.
A settlement is recorded in a separation agreement or a consent order. Either is enforceable, but they are not the same instrument, and which one is appropriate depends on what is being resolved.
If it goes to trial
A family trial involves live evidence, cross-examination and argument, and results in a judgment. It is the exception rather than the rule, and it is worth being honest about why: cost, delay, and the strain of testifying against someone you used to be married to.
Cases that do go to trial usually have a specific reason, a genuinely contested factual dispute, a party who will not engage, or a legal question with no settled answer.
Common questions
Do we have to be separated for a year before starting?
No. The one-year separation period must be complete before the divorce itself is granted, but an application can be started earlier, and claims for support, property and parenting can be advanced immediately.
Does it matter who files first?
Not to the outcome. It can affect which court location hears the matter, and some people find there is a practical advantage in setting the agenda, but the law does not favour the applicant.
Can we use the same lawyer?
No. A lawyer cannot act for both parties in a separation, because the interests conflict. One party may retain a lawyer to prepare an agreement, and the other should get independent legal advice before signing it.
What if my spouse will not respond at all?
The case can proceed without them once they have been properly served and the time to answer has passed. What cannot be skipped is proper service, a judgment obtained without it is vulnerable to being set aside.
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