Sometimes the ‘no-fault divorce’ is denied because of ‘fault’

Prior to 1968, spouses who wished to end their marriage by divorce did not have it easy. They were required to establish either cruelty or adultery in order to end their marriage. Then in 1968, the Government of Canada changed the law of divorce. 

From that point onward, the Divorce Act granted spouses the right to end their marriage without proving fault. The “no-fault divorce” was born. The rate of divorce from that point onwards soared.

With the rise in applications for divorce, some spouses asked that their divorce be granted before the other issues were resolved. This resulted in judges having to consider whether applications for custody of children, support and property division could be heard independently from an application for divorce and after the granting of a divorce. 

In Ontario, Rule 12(6) of the Family Law Rules provided that “the court may, on motion, make an order splitting a divorce from the other issues in a case if neither spouse will be disadvantaged by the order and reasonable arrangements have been made for the support of any children of the marriage.” 

Granting a divorce before the resolution of the other issues was considered to be an initiative meant to provide flexibility to divorcing couples. It allowed such couples to get over the emotional trauma of their separation while still working on the remaining financial issues.

As time marched on, more spouses sought to expedite the granting of their divorce - well before the resolution of their other issues. Some spouses did this in order to remarry, while others did it as part of their emotional recovery from the break-down of their marriage. Whatever the motivation, severing a divorce from the other issues and asking judges to grant early divorces became commonplace… Until recently.

Judges have begun to push back against divorce where there are outstanding issues

In a few recent court decisions, judges have been demonstrating reluctance to allow spouses to divorce where there are outstanding financial issues that need to be resolved. 

Indeed, some judges are using divorce as a lever to ensure that there will be proper support paid, that there be an agreement for the distribution of family property, and that financial disclosure be made.

One husband recently brought forward a request that he be granted an early divorce.  It was denied. He did not stop there. He then sought to appeal that decision. The denial of his request by Justice Emery was brought before Justice Price on a motion for leave to appeal. 

In the case of Mullin v. Sherlock, 2015 ONSC 7587, the spouses were married for only 9 months. They had no children together. While the husband only sought a divorce, the wife counterclaimed for support and property division. The husband had no choice but to defend those claims, but he also brought an early motion to separate out his claim for a divorce so that he could obtain an early divorce. 

In denying his request, Justice Emery relied on the wife’s argument that the granting of a divorce would change her legal status from ‘spouse’ to ‘former spouse’ and thus disentitle her to spousal medical and life insurance benefits arising from her husband’s employment and her inheritance rights under estates law. 

In a fairly lengthy decision whereby Justice Price studies the history of this subject, he validated the decision by Justice Emery and refused the husband’s request for an early divorce. 

Similarly, in the case of Plech v. Barwicz, 2016 ONSC 875 (CanLII), Justice Kiteley was faced with a similar motion. In this case, the wife had a very long list of reasons as to why the early granting of a divorce should be refused. She filed an affidavit in which she explained the reasons for her not consenting to an early divorce, including the following:

1. the husband failed to respond to repeated requests for disclosure;
2. the husband failed to provide an income report;
3. the husband has not updated his financial statement and yet has experienced major changes to his financial circumstances;
4. the husband is trying to “starve her out” of the litigation process by bringing costly and unnecessary motions;
5. the husband does not pay all of the extraordinary expenses for the children;
6. at this point, it is not possible to determine the husband’s true income for child and spousal support purposes;
7. the husband’s luxurious lifestyle has continued since separation.

Justice Kiteley carefully examined the law. She wrote:

“Section 11(b) of the Divorce Act provides as follows:

In a divorce proceeding, it is the duty of the court. . . 

(b) to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage and, if such arrangements have not been made, having regard to the applicable guidelines, to stay the granting of the divorce until such arrangements are made…”

Neither counsel provided a factum or a brief of authorities.  It is clear from s. 11(1)(b) that the judge has a positive duty to satisfy herself as to the arrangements for the support of the children. That duty is engaged before the granting of the divorce.  While this is a motion to sever as a precursor to the motion for divorce, the submission is that the duty of the court cannot be satisfied at the stage of requesting the divorce order so there is no point in making the order of severance.”

The husband’s motion to sever the divorce from the corollary relief was dismissed and he was ordered to pay costs in the sum of $3,000 for his unsuccessful motion.  

It would seem that ‘fault’ has crept back into Canada’s ‘no-fault divorce’ laws. 

Did you know that you can order customized divorce papers online?

SplitEasy makes it possible to purchase customized divorce papers online. We will also guide you on how to submit your completed divorce paperwork. Get started today.