Divorce in Ontario: What Happens If You Don't File an Answer?
The Default Trap: How Missing the 30-Day Deadline Can Cost You Everything
Legal Authority Verification
Court Procedure Strategy reviewed by Deepa Tailor, Senior Family Lawyer. Updated January 2026 to reflect Family Law Rules on default judgments.
Too Busy to Read? The 30-Second Warning:
The Deadline
You have 30 days to file an Answer (Form 10) if served in Canada/USA (60 days if outside).
The Consequence
If you miss the deadline, the court can "Note You in Default." This means the judge can make final orders on custody and property based only on your ex's story.
The Fix
If you are noted in default, you must file a Motion to Set Aside Default immediately. It is not automatic.
Silence is Dangerous
When you get served with a Form 8 Application, the clock starts ticking. Ignoring it doesn't make it go away; it hands your ex a blank cheque.
The Disruptor Truth
Most people think they have time to "figure things out" or "talk to their ex first." By the time they realize the deadline has passed, the damage is done. The court has already made orders based entirely on the other side's version of events.
What Happens When You Get Served?
When your spouse or partner files a divorce or family law application, they must legally serve you with the documents. This is called "Service of Process."
The moment you are served, a strict legal deadline begins:
Served in Canada or USA
30 Days
To file your Answer (Form 10)
Served Outside North America
60 Days
To file your Answer (Form 10)
Important: Weekends Count
The 30-day deadline includes weekends and holidays. If day 30 falls on a weekend, you get until the next business day, but don't count on it. File early.
Why People Miss the Deadline
They think it's just a "scare tactic" and their ex won't actually follow through
They're overwhelmed and don't know where to start
They can't afford a lawyer yet and think they need one before filing anything
They're trying to negotiate directly with their ex and assume the court process will pause
None of these are valid legal excuses. The clock keeps ticking regardless of your circumstances.
The Answer (Form 10): Your Only Chance to Tell Your Side
The Answer (Form 10) is your official response to your spouse's Application. It is your opportunity to:
Admit or Deny
State which facts in their Application you agree with and which you dispute
Tell Your Story
Provide your version of events, especially where it differs from theirs
Defend Yourself
Challenge their claims about custody, support, or property division
Make Your Own Claims
Ask for what you want (custody, support, property) through a "Claim by Respondent"
Critical Legal Principle
If you don't file an Answer, the court assumes everything in the Application is true. The judge will not hear your side of the story. You forfeit your right to participate in the case.
What Goes in an Answer?
Form 10 requires you to respond to each paragraph of the Application. For each claim, you must:
If you agree with the fact
If you disagree with the fact
If you genuinely don't know whether it's true
The "Claim by Respondent" (Your Counter-Claim)
Many people don't realize that filing an Answer is not just defensive. You can also use it to make your own claims.
For example, if your spouse is asking for custody, you can file a Claim by Respondent asking for custody yourself. This way, you're not just defending against their claim—you're actively pursuing what you want.
Strategic Tip
Even if you think you might settle, file an Answer with a full Claim by Respondent. It gives you negotiating leverage. You can always withdraw claims later, but you can't easily add them after the deadline.
How to File Form 10
Complete Form 10
Download from the Ontario Court Forms website or get it from the courthouse
File with the Court
Submit to the same courthouse where the Application was filed (check the top of Form 8)
Serve the Other Party
You must serve a copy on your spouse's lawyer (or them directly if they're self-represented)
File Proof of Service
File an Affidavit of Service (Form 6B) with the court to prove you served them
Noting in Default: The Consequence of Silence
If you fail to file an Answer within the deadline, the other party can ask the court to "Note You in Default."
The Disruptor Analogy
Getting noted in default is like forfeiting a sports game. The other team keeps playing and scoring points (Orders) while you sit on the bench, unable to speak. The referee (Judge) assumes you have nothing to say.
What "Default" Means Legally
When you are noted in default, the court treats you as if you:
Admit all facts in the Application (even if they're false)
Waive your right to participate in hearings or trials
Forfeit your ability to cross-examine witnesses or present evidence
Allow the judge to make final orders based solely on the other party's evidence
What Orders Can Be Made Against You?
Once you're in default, the court can make orders on virtually any issue in the Application:
Custody & Access
The judge can award sole custody to your ex and limit your parenting time based only on their claims
Child & Spousal Support
The court can order you to pay support based on the income they claim you earn (even if inflated)
Property Division
The judge can divide property based on their valuation and exclude assets you claim are yours
Divorce Itself
The court can grant the divorce without your input on any terms
The "Uncontested Divorce" Exception
There is one scenario where not filing an Answer is intentional and strategic: the Uncontested Divorce.
If you and your spouse have already agreed on everything (custody, support, property) and signed a Separation Agreement, you may choose not to file an Answer. This allows the divorce to proceed quickly without a trial.
Critical Warning
Only do this if you are 100% certain you agree with every word in the Application and every term in the Separation Agreement. If there's even one issue you disagree with, file an Answer. You can always settle later, but you can't easily undo a default judgment.
Real-World Example: The Cost of Default
Case Study: A father was served with an Application claiming he earned $150,000/year (he actually earned $80,000). He thought he could "sort it out later" and didn't file an Answer.
His ex noted him in default. The judge ordered child support based on $150,000 income—nearly double what he actually earned. By the time he hired us to set aside the default, he owed $12,000 in arrears.
The lesson: Filing an Answer would have taken 2 hours and $500. Fixing the default took 6 months and $15,000 in legal fees.
How to Fix It: Setting Aside Default
If you've been noted in default, all is not lost—but you must act immediately. You need to file a Motion to Set Aside Default (Form 14B).
Time is Critical
The longer you wait after being noted in default, the harder it is to convince a judge to set it aside. If final orders have already been made, you may be stuck with them permanently.
The Legal Test: What You Must Prove
To set aside a default, you must satisfy the judge on three criteria:
Valid Reason for the Delay
You must explain why you didn't file an Answer on time. Valid reasons include:
- You were never properly served (didn't receive the documents)
- You were hospitalized or had a medical emergency
- You genuinely didn't understand the legal significance
- Your ex misled you about the deadline
Not valid: "I was busy," "I couldn't afford a lawyer," or "I thought we were settling."
Valid Defense on the Merits
You must show that you have a legitimate legal defense or dispute. For example:
- Their claimed income for you is inflated
- You have evidence you were the primary caregiver (custody dispute)
- Assets they claim are joint are actually yours alone
- You have a Cohabitation Agreement that changes property rights
Key point: You don't need to prove your defense will win—just that it's not frivolous.
You Acted Promptly
You must show that as soon as you realized you were in default, you took immediate steps to fix it. Waiting weeks or months after discovering the default will hurt your case.
The Process: How to File the Motion
Prepare Form 14B (Motion)
State that you are seeking an order to set aside the noting in default
Draft an Affidavit
Explain why you missed the deadline, what your defense is, and why you acted quickly
Attach Your Draft Answer
Include the Answer (Form 10) you would have filed, showing what you dispute
File and Serve
File with the court and serve the other party (they will likely oppose your motion)
Attend the Motion Hearing
A judge will hear arguments from both sides and decide whether to set aside the default
Our Strategic Approach
We draft affidavits specifically designed to meet the three-part test. We anticipate the other side's arguments and address them preemptively. We also negotiate with opposing counsel to see if they'll consent to setting aside the default (which saves everyone time and money).
What If the Judge Says No?
If the judge refuses to set aside the default, you have limited options:
You can appeal to the Divisional Court, but this is expensive and time-consuming
If the orders are final, you may be stuck with them unless circumstances change significantly
Later, if circumstances change (e.g., income drops), you can seek to vary support orders
This is why prevention is so much better than cure. File your Answer on time.
For the Applicant: If Your Ex Doesn't Respond
If you are the one who filed the Application (Form 8), and your spouse or partner has not filed an Answer within the deadline, you can move forward without them.
Strategic Advantage
If the other party doesn't respond, you can often get your Divorce Order and final orders on all issues (custody, support, property) without a trial. This is called an Uncontested Divorce.
Step 1: Note Them in Default
After the 30-day deadline passes (or 60 days if served outside North America), you can file a Request to Clerk (Form 23A) asking the court clerk to note the other party in default.
What You Need to File:
- Form 23A (Request to Clerk)
- Affidavit of Service (Form 6B) proving they were properly served
- Proof of the deadline (showing 30+ days have passed)
The court clerk will review your documents and, if everything is in order, will officially note the other party in default. This is an administrative step—no judge is involved yet.
Step 2: File for Uncontested Trial
Once they are noted in default, you can proceed to get your final orders. You have two options:
Option A: Affidavit for Uncontested Trial
File Form 26B (Affidavit for Uncontested Trial). This is a sworn statement that includes all the evidence you need to prove your case.
Best for: Simple cases (divorce only, no children, no property disputes)
Option B: Uncontested Trial Hearing
Request a short hearing where you present evidence to a judge (usually 15-30 minutes). The other party won't be there.
Best for: Complex cases (custody, high support, property division)
What the Judge Will Review
Even though the other party is in default, the judge still needs to be satisfied that:
Service was proper (they actually received the documents)
The claims are reasonable (e.g., child support matches the Guidelines)
The orders are in the best interests of any children (custody/access)
The divorce grounds are valid (1 year separation or adultery/cruelty)
Important Note
Just because the other party is in default doesn't mean you automatically get everything you asked for. The judge will still scrutinize your claims to ensure they're fair and legally sound. This is especially true for custody and child support (the court always protects children's interests).
Step 3: Get Your Final Order
If the judge is satisfied with your evidence, they will issue:
Divorce Order (Form 25A) - Your marriage is legally dissolved
Final Orders on custody, support, and property as requested in your Application
These orders are final and enforceable. If the other party later tries to challenge them, they will need to file a Motion to Set Aside Default (which is difficult) or a Motion to Change (which requires proving a material change in circumstances).
Timeline: How Long Does It Take?
Day 0-30
Waiting period for the other party to file an Answer
Day 31
File Request to Clerk (Form 23A) to note them in default
Day 35-40
Court clerk processes default noting (usually 5-10 business days)
Day 41+
File Form 26B or request uncontested trial hearing
Day 60-90
Judge reviews and issues final orders (timing varies by courthouse)
Our Strategic Approach
We prepare comprehensive Form 26B affidavits that anticipate every question a judge might have. We include all required financial disclosure, parenting plans, and property valuations upfront. This minimizes delays and increases the likelihood of getting your orders quickly.
Frequently Asked Questions
Common questions about filing an Answer and default judgments
Can I just email the court my response?
No. You must file Form 10 (Answer) properly with the court clerk, either in person, by mail, or through the online portal (if available in your jurisdiction). An email to the court or to your ex does not count as filing an Answer.
Does the 30-day deadline include weekends?
Yes. The 30 days includes weekends and holidays. If day 30 falls on a weekend or holiday, you get until the next business day, but don't rely on this—file early to avoid any issues.
What if I can't afford a lawyer yet?
File something to stop the clock. You can file a basic Answer (Form 10) yourself, even if it's not perfect. This preserves your right to participate. You can then hire us later to amend your Answer and add a proper Claim by Respondent. Filing a placeholder Answer is infinitely better than missing the deadline.
Can I file an Answer after the 30-day deadline?
Technically yes, but it's risky. If the other party hasn't yet noted you in default, you can file a late Answer. However, if they've already noted you in default, you'll need to file a Motion to Set Aside Default first, which is much more complicated and expensive.
What if I was never properly served?
If you were never properly served (e.g., they left documents with a stranger, or you never received them), you have a strong argument to set aside any default. However, you must act immediately once you discover the court proceedings. Waiting months after learning about the case will hurt your credibility.
Can I agree to an uncontested divorce without filing an Answer?
Yes, if you and your spouse have already agreed on everything and signed a Separation Agreement. In this case, not filing an Answer is intentional—it allows the divorce to proceed quickly. However, make absolutely sure you agree with every word in the Application before doing this.
What happens if I file an Answer but then stop participating?
If you file an Answer but then fail to comply with court deadlines (e.g., don't file financial disclosure, don't show up to conferences), the court can strike your Answer and note you in default anyway. Filing an Answer is just the first step—you must continue to participate actively.
Can the other party withdraw the default if they change their mind?
Yes. If the other party consents, they can agree to set aside the default without a motion. This sometimes happens if you start negotiating a settlement after being noted in default. However, don't count on their goodwill—file your Answer on time.
Still Have Questions?
Every case is different. If you've been served with an Application or are considering noting someone in default, book a strategy session to discuss your specific situation.
Book a ConsultationThe Clock is Ticking. Stop It Now.
Whether you need to file an Answer, set aside a default, or note someone in default, we handle the court procedure so you can focus on moving forward.
Emergency Response
Been served? We'll file your Answer within 48 hours to stop the clock and protect your rights.
Default Recovery
Already in default? We'll draft a Motion to Set Aside Default with evidence designed to meet the legal test.
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