Family Law Rules – Rule 36: Divorce

Angela Princewill

June 28, 2023


Application for divorce

36. (1) Either spouse may start a divorce case by,

(a) filing an application naming the other spouse as a respondent; or

(b) filing a joint application with no respondent. O. Reg. 114/99, r. 36 (1).

Joint application

(2) In a joint application, the divorce and any other order sought shall be made only with the consent of both spouses. O. Reg. 114/99, r. 36 (2).

Allegation of adultery

(3) In an application for divorce claiming that the other spouse committed adultery with another person, that person does not need to be named, but if named, shall be served with the application and has all the rights of a respondent in the case. O. Reg. 114/99, r. 36 (3).

Marriage certificate and central divorce registry certificate

(4) The court shall not grant a divorce until the following have been filed:

1. A marriage certificate or marriage registration certificate, unless the application states that it is impractical to obtain a certificate and explains why.

2. A report on earlier divorce cases started by either spouse, issued under the Central Registry of Divorce Proceedings Regulations (Canada). O. Reg. 114/99, r. 36 (4).

Divorce based on affidavit evidence

(5) An affidavit in Form 36 containing the following information shall be filed in accordance with subrule (5.1):

1. Confirmation that all the information in the application is correct, except as stated in the affidavit.

2. If no marriage certificate or marriage registration certificate has been filed, sufficient information to prove the marriage.

3. Proof of any previous divorce or the death of a party’s previous spouse, unless the marriage took place in Canada.

4. The information about arrangements for support of any children of the marriage required by paragraph 11 (1) (b) of the Divorce Act (Canada), and the income and financial information required by section 21 of the child support guidelines attached as exhibits.

5. Any other information necessary for the court to grant the divorce. O. Reg. 298/18, s. 19 (1).

When requirement applies

(5.1) The affidavit referred to in subrule (5) shall be filed,

(a) by the applicant, if the respondent files no answer or files an answer and later withdraws it; or

(b) in the case of a joint application, by the applicants. O. Reg. 298/18, s. 19 (1).

Draft divorce order

(6) The applicant shall file with the affidavit,

(a) three copies of a draft divorce order (Form 25A);

(b) a stamped envelope addressed to each party; and

(c) if the divorce order is to contain a support order,

(i) an extra copy of the draft divorce order for the clerk to file with the Director of the Family Responsibility Office, and

(ii) two copies of a draft support deduction order. O. Reg. 114/99, r. 36 (6).

(6.0.1)-(6.6) Revoked: O. Reg. 649/20, s. 5 (1).

Clerk to present papers to judge

(7) Once the requirements of subrules (4) to (6) have been met, the clerk shall prepare a certificate (Form 36A) and present the documents to a judge, who may,

(a) grant the divorce as set out in the draft order;

(b) have the clerk return the documents to the applicant to make any needed corrections; or

(c) grant the divorce but make changes to the draft order, or refuse to grant the divorce, after giving the applicant a chance to file an additional affidavit or come to court to explain why the order should be made without change. O. Reg. 114/99, r. 36 (7); O. Reg. 535/18, s. 10 (9).

Divorce certificate

(8) When a divorce takes effect, the clerk shall, on either party’s request,

(a) check the continuing record or, if there is no continuing record, the court file, to verify that,

(i) no appeal has been taken from the divorce order, or any appeal from it has been disposed of, and

(ii) no order has been made extending the time for an appeal, or any extended time has expired without an appeal; and

(b) if satisfied of those matters, issue a divorce certificate (Form 36B) and, unless the court orders otherwise,

(i) mail it to the parties if stamped envelopes have been filed, or

(ii) email it to the parties. O. Reg. 114/99, r. 36 (8); O. Reg. 298/18, s. 19 (3); O. Reg. 649/20, s. 5 (2).

(9) Revoked: O. Reg. 89/04, s. 12.