Most people hear the word “simple” and automatically believe this is the easiest way to obtain a divorce. Despite what the name suggests, a simple divorce has more steps and a longer turnaround time than a joint divorce. So, what is the real difference?
Both types of divorces can proceed once all outstanding issues between you and your spouse relating to property, support, and the children have been settled or agreed upon. Parenting time (custody) and child support must be in place before a divorce will be granted in Canada.
Another requirement of a divorce that must be met before applying is that you and your spouse must have been separated for a period of at least one year.
A simple divorce requires you to prepare an Application which must first be submitted to the Court for issuing. Only you sign this Application. Once issued, this Application must be served on your spouse through personal service. Personal service is similar to what you see in movies where a process server attends a person’s home and serves them with paperwork. Unfortunately, you cannot be the person that serves your spouse. Once served, the person will file an Affidavit of Service, letting the Court know that your spouse has been served. A waiting period of 30 days begins to allow your spouse to appeal your request for a divorce. During this time, they may file what’s called a Form 10: Answer and bring other claims and reasoning as to why the divorce should not be granted at this time. Once the 30 day period is up, you will have to swear an Affidavit for Divorce which confirms that all information in the Application for Divorce is correct and that there have been no other changes. After filing this form, together with a draft Divorce Order and your Marriage Certificate, the divorce is considered to be “set down” and it will be reviewed and considered by the judge. If the judge grants the divorce, you will receive the issued Divorce Order. If the judge decides that more information is required, they will send you an endorsement with their comments and requests. The actual divorce takes effect 30 days after the Divorce Order is signed by a judge. This 30 day period gives you one last opportunity to change your mind and stay married. After this period has lapsed, the divorce is final. In order to remarry, you will need to obtain one more form from the Court called the Certificate of Divorce. This form is simply to confirm that neither you nor your spouse decided to appeal the divorce during the 30 day period after the Divorce Order is issued.
A joint divorce is a slightly different procedure and is a better option for spouses that are amicable and on the same page for obtaining a divorce. The same Application is used, however both you and your spouse will sign the form. You will also both swear the Affidavit for Divorce (either both of you swearing the same document or each of you preparing your own and swearing individual ones). Both the Application and Affidavit(s) for Divorce get filed at the same time. There is no need for personal service by either of you and the first 30 day waiting period after service is waived – since no one needs to serve anyone. The documents filed go to the judge for consideration and review right away. You will still have to file a draft Order and Marriage Certificate with the original filing. Also, the same 30-day appeal period applies once the Order is granted to allow either of you to change your mind and stay married.
The main benefit of doing a joint divorce versus a simple divorce is the faster turnaround time and the cost savings in not having to hire a process server to serve your spouse, which can cost hundreds of dollars. The court filing fees are the same for both kinds of divorces.
So which divorce is right for you? The one that will cause you the least amount of stress.
If your spouse is difficult and you worry about them agreeing to sign anything, then a simple divorce is your better option. If you and your spouse have open communication and get along well enough to agree to proceed with the divorce together, then a joint divorce may be a simpler and faster option for both of you.
Senior Law Clerk at Townsend Family Law