Incarceration does not prevent you from obtaining a divorce in Ontario. You can legally serve divorce papers to a spouse inside any provincial jail or federal penitentiary. While property division remains standard, a lengthy prison sentence often results in spousal and child support being reduced to zero due to their loss of income.
Having a spouse sentenced to prison is an incredibly traumatic experience that disrupts every aspect of your family’s life. Whether they are serving time for a summary conviction in a local Ontario detention centre or facing years in a federal facility like Collins Bay Institution for an indictable offence, you might feel trapped in a marriage that effectively no longer exists. A widespread misconception is that you cannot divorce someone who is behind bars, or that you must wait for their release to divide your assets.
This is simply untrue. The Ontario Superior Court of Justice processes divorces involving incarcerated individuals regularly. While the physical logistics of serving documents and attending court are certainly more complicated, your legal right to end the marriage and claim your share of the net family property remains fully intact. Partnering with a skilled local family lawyer from our directory will help you handle the complex red tape of the correctional system. Here is how the divorce process works when your spouse is incarcerated in Ontario.
Step-by-Step Process for Divorcing an Incarcerated Spouse
The fundamental laws of the federal Divorce Act and the Ontario Family Law Act still apply, but the administrative execution requires coordinating with correctional authorities.
Step 1: Establishing the Grounds for Divorce
To file for divorce, you must prove marriage breakdown. In Canada, the most common ground is a one-year separation. The time your spouse spends living in prison absolutely counts toward this one-year period, provided you intend for the marriage to be over. While you could technically file under the grounds of “cruelty” depending on the nature of their criminal offence, most lawyers advise against this as it requires a difficult trial. Simply waiting out the one-year separation is faster and cheaper.
Step 2: Filing the Application
Your lawyer will draft the standard Form 8A Application (Divorce) and file it at your local Superior Court of Justice (e.g., in Toronto, Brampton, or Ottawa). This document outlines your requests for the divorce itself, the division of property, and any orders regarding parenting time and decision-making responsibility for your children.
Step 3: Serving Documents to an Inmate
You cannot personally hand divorce papers to your spouse, nor can you just mail them to the prison. You must hire a professional process server. The process server will contact the warden or the litigation coordinator at the provincial or federal facility to arrange a specific time to formally serve the documents to the inmate. Security protocols are strict, but correctional facilities are legally obligated to facilitate the service of legal documents.
Step 4: Managing the Response (or Default)
Once served, your incarcerated spouse has 30 days to file an Answer. Because retaining a lawyer from inside prison is logistically difficult and expensive, many inmates simply ignore the paperwork. If they do not respond within the time limit, your lawyer will file a motion to proceed by “default.” This means the judge will review your requests and, provided they are fair and legally sound, grant your divorce uncontested without a trial.
Step 5: Addressing Spousal Support and Property
Property division proceeds normally; you calculate your Net Family Property as of the date of separation, and the incarcerated spouse is still entitled to their half of the assets (like the matrimonial home). However, spousal support is severely impacted. Because inmates generally earn mere pennies a day, their income drops to zero. A judge will typically find this to be a “material change in circumstances” and will reduce or suspend their spousal support obligations entirely while they are incarcerated.
How Much Does it Cost in Ontario?
Divorcing an inmate is often cheaper than a standard divorce if they do not contest it, but the costs of service can be slightly higher. Here are the expected costs in CAD as of May 2026:
- Court Filing Fees: The standard government fees to process a divorce at the Superior Court of Justice total $632 CAD.
- Process Server Fees: Coordinating with a prison and travelling to a remote federal facility usually costs between $150 and $450 CAD.
- Lawyer Fees: If the inmate does not respond and the divorce proceeds by default, legal fees generally range from $2,000 to $4,000 CAD. If they contest from prison, costs will increase rapidly based on hourly rates of $250 to $600 CAD.
| Phase of Divorce | Average Cost (CAD) | Who Pays? |
|---|---|---|
| Drafting & Filing Application | $1,500 – $2,500 | You (The Applicant) |
| Prison Process Server | $150 – $450 | You (The Applicant) |
| Default Proceeding (Uncontested) | $1,000 – $1,500 | You (The Applicant) |
How Long Does the Process Take?
If you rely on the one-year separation rule, you must wait a full year before the court will sign the final divorce order. Once the year has passed and the paperwork is filed, an uncontested default divorce involving an incarcerated spouse typically takes 4 to 6 months for the court to process and mail back the final Divorce Certificate. Delays usually only happen if the facility goes into lockdown and delays the process server.
Frequently Asked Questions (FAQ)
Can an incarcerated spouse fight the divorce?
Yes. Being in prison does not strip someone of their legal rights. They can hire a family lawyer from the outside or seek Legal Aid to file an Answer and contest your claims regarding property division or parenting time.
Does my spouse still get half the house?
Generally, yes. Under the Ontario Family Law Act, committing a crime does not forfeit your right to the equalization of net family property. Unless they depleted family assets to fund their criminal activity, they are still entitled to their fair share of the marital wealth.
How is decision-making responsibility handled?
Because an incarcerated parent cannot actively participate in day-to-day choices regarding a child’s health, education, or religion, the Ontario courts will almost always grant sole decision-making responsibility to the non-incarcerated parent.
Can the court order support to be paid from their savings?
Yes. If the incarcerated spouse has zero income but possesses significant liquid assets, investments, or is receiving a payout from the sale of the matrimonial home, a judge can order lump-sum spousal support to be paid directly from those assets.
Will they get parenting time when released?
Parenting time is determined strictly on the “best interests of the child.” A criminal record does not automatically ban a parent from seeing their child, but the court will heavily scrutinize the nature of the offence (especially if it involved violence) before granting supervised or unsupervised visits.
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