How to serve divorce papers in Ontario

A divorce is a family case

In Ontario, the court for a divorce under the Divorce Act is the Superior Court of Justice (Divorce Act, s. 2), and it can hear the case if either spouse has been habitually resident in Ontario for at least one year before it starts (s. 3(1)). The Family Law Rules govern Divorce Act cases in the Superior Court of Justice and its Family Court (Rule 1(2)).

Either spouse can start a divorce by filing an application naming the other spouse as respondent, or both can file a joint application with no respondent (Rule 36(1)). The application form is Form 8A, Application (divorce).

Who may serve it

Special service of an application must be carried out by a person other than the party who has to serve it, unless the court orders otherwise (Rules 6(4.1) and (4.2)). No one under 18 may serve any document under the Family Law Rules (Rule 6(1.1)). So you cannot hand the papers to your spouse yourself; a friend or relative over 18, or a process server, can.

How special service works (Rule 6(3))

• Leaving a copy with your spouse. This is effective the same day, or the next day if left after 4 p.m. (Rule 6(11.1)).
• Leaving a copy with your spouse’s lawyer of record, or a lawyer who accepts service in writing on a copy.
• Mailing a copy with a prepaid return postcard (Form 6). It counts only once the postcard, signed by your spouse, is filed in the continuing record.
• Leaving a copy at your spouse’s home, in an envelope addressed to them, with an apparent adult resident, and mailing another copy the same or next day. Effective on the fifth day after mailing (Rule 6(11.2)).

If the application includes a claim for parenting, support or property, the clerk issues an automatic order (Form 8.0.1), which must be served together with the application (Rules 8.0.1(3) and (5)). If the application alleges adultery and names the other person, that person must also be served (Rule 36(3)).

Joint applications

A joint application is filed by both spouses with no respondent (Rule 36(1)(b)), so there is no respondent to serve with it. The divorce and any other order sought can be made only with the consent of both spouses (Rule 36(2)).

After service: the answer deadline

Your spouse must serve and file an answer within 30 days after being served (Rule 10(1)); the time is 60 days if the application is served outside Canada or the United States (Rule 10(2)). If no answer is filed, the case can go ahead without them (Rules 10(5) and 1(8.4)), and the applicant files an Affidavit for divorce (Form 36) to ask for the divorce on paper (Rule 36(5.1)(a)). The effective date of service in the affidavit starts that clock.

Proof of service: Form 6B

Service is proved by an Affidavit of Service in Form 6B (Rule 6(19)(b)). The person who served it states the date, time, place and method of service, their relationship to any party, and that they are at least 18, and signs it in front of a lawyer, justice of the peace, notary public or commissioner for taking affidavits. If your spouse can’t be found, see our guide on what to do when someone is avoiding service.