Can You Switch from a Joint Divorce to a Contested Divorce?

How to Switch from a Joint Divorce to a Contested Divorce

If one spouse no longer agrees to proceed with a joint divorce, the process must shift to a contested divorce. Ontario’s legal system allows for this change, but it requires specific procedural steps to officially withdraw the joint application and begin anew.

Withdrawing the Joint Application and Filing a New, Sole Application

The first step in switching from a joint to a contested divorce is to withdraw the original joint divorce application. Since joint divorces are based entirely on mutual consent, the moment that consent is revoked, the joint process becomes invalid and must be formally ended.

To proceed, the spouse still wishing to divorce must:

• File a Notice of Withdrawal (Form 4) with the court to stop the joint application.
• Prepare and submit a new sole divorce application under Form 8.

This new application allows the initiating spouse to set out their claims, whether related to child custody, spousal support, or division of property.

Serving the Other Party with the New Divorce Application

Unlike a joint divorce—where both parties apply together—a contested divorce involves one spouse (the applicant) serving the other (the respondent) with court documents. This must be done in accordance with Ontario’s Family Law Rules, using proper service methods such as personal service or an approved alternative.

The served spouse then has:

• 30 days (within Canada) to file an answer if they wish to respond to or dispute the claims.
• 60 days (if served outside Canada or the U.S.) to respond.

If no response is filed, the applicant may proceed to request an uncontested trial or final order based on their application alone.

Starting Fresh with New Timelines and Court Procedures

Switching to a contested divorce essentially restarts the legal process. This includes:

• New court filing fees
• A fresh set of timelines and procedural requirements
• Potentially multiple court appearances, such as case conferences, settlement conferences, and possibly a trial

It also means the court now plays a more active role in resolving the issues between the spouses—especially if there are disputes over parenting arrangements, financial support, or property division.

Common Reasons for the Shift to Contested Divorce

Disagreements over Parenting Time, Spousal Support, or Property Division

One of the most common reasons for abandoning a joint divorce is the emergence of disagreements on key legal matters. Even if a couple initially believed they were aligned, tensions can flare when discussing:

• Parenting schedules or decision-making authority over children
• The amount or duration of spousal support
• Valuation or division of property, such as the matrimonial home or pensions

As these discussions progress, one spouse may feel the terms are unfair or that their rights aren’t being protected, prompting a withdrawal of consent and a move toward contested proceedings.

External Pressures: New Relationships, Financial Changes, or Legal Advice

Sometimes, the shift to contested divorce is triggered by outside influences. These may include:

• A spouse entering a new romantic relationship, altering priorities or increasing mistrust
• Sudden financial changes, such as a job loss, inheritance, or business failure
• Receiving legal advice that raises concerns about the fairness or legality of the proposed agreement

In these situations, what once seemed like a fair and straightforward agreement may now appear risky or one-sided. With fresh insight or evolving circumstances, one spouse may decide to challenge the original terms through a contested divorce.

Breach of Existing Agreements or Rising Tensions

A joint divorce often relies on a prior separation agreement, which outlines how matters will be handled. If one spouse violates that agreement—by failing to pay support, ignoring parenting terms, or hiding financial information—it can quickly erode trust.

Legal and Emotional Implications of Switching Divorce Types

Increased Costs and Court Involvement

A contested divorce almost always involves higher financial costs compared to a joint divorce. This is due to:

• Additional court filings and documentation
• Legal fees for representation, case conferences, and potential trials
• Expert reports (e.g., parenting assessments or property valuations)

The court also becomes more involved in managing the case, introducing mandatory steps such as case conferences, disclosure requirements, and, in some cases, mediation or trial preparation. These steps add both time and procedural complexity to the process.

Potential Emotional Strain on Both Parties and Children

Switching to a contested divorce often brings heightened emotional tension. Disputes that were previously resolved or set aside may now resurface, leading to:

• Increased conflict between spouses
• Strained communication or hostility
• Heightened anxiety, particularly if children are involved

Children can be especially affected by the conflict. Disagreements over custody, access, or parenting time may create confusion or distress. The adversarial nature of a contested divorce can undermine co-parenting relationships and long-term family stability.

Importance of Documentation and Updated Legal Strategy

Once the process becomes contested, documentation becomes crucial. Each spouse must now:

• Gather and disclose financial records, including income, assets, debts, and expenses
• Maintain records of communication, parenting arrangements, and support payments
• Revisit any previous agreements (such as a separation agreement) for enforceability and fairness

When to Consult a Family Lawyer or Mediator

Evaluating the Consequences of Switching

Before making the decision to switch from a joint to a contested divorce, a family lawyer can help you evaluate the legal and financial implications. They’ll assess your current situation, including:

• Whether the original separation agreement is enforceable
• What the contested issues are and how they may be viewed by the court
• The likely timeline and cost of proceeding through the court system

This kind of professional insight ensures you’re making an informed decision—not one based purely on frustration or temporary disagreement.

Seeking Legal Advice Before Initiating a Contested Application

If you’re the spouse considering moving forward with a contested divorce, it’s important to consult a lawyer before filing. An experienced family lawyer will:

• Help you prepare a solid application that outlines your claims clearly
• Ensure you follow all service and court filing rules under Ontario’s Family Law Rules
• Assist with gathering documentation and evidence to support your position

Acting without legal advice can result in missed deadlines, incomplete forms, or weak claims that may hurt your case down the line.

Mediation as a Way to Avoid Escalating the Conflict

In many cases, it’s still possible to resolve disputes through mediation rather than switching to full litigation. A family mediator is a neutral third party who can:

• Help both spouses communicate more effectively
• Facilitate negotiation on specific issues like parenting time, support, or asset division
• Draft updated terms that reflect the current needs of both parties

Mediation can be faster, less expensive, and less adversarial than a court battle—and it often helps preserve relationships, especially when children are involved.