When does the divorce actually take effect? 

That was the question answered by the Ontario Court of Appeal in the case of White v. White [2015] O.J. No. 4953. 

In this case, the husband obtained an uncontested order for divorce, signed by Justice Paisley on June 10, 2013. As is always the case, the divorce took effect on the 31st day following the order granting the divorce. In the intervening period, the spouses were still married. If one of the spouses had died during that period, the judgment granting the divorce would not have taken effect. 

You are not officially divorced until 31 days after the divorce order

Section 14 of the Divorce Act provides that "[o]n taking effect, a divorce granted under this Act dissolves the marriage of the spouses."

In this case, the wife obtained an order to stay (suspending) the divorce order, which was followed by the death of the husband. The adult children of the husband sought to validate the divorce order, as this would have impacted their estate rights. 

The wife then brought a motion for an order permanently terminating the divorce order and for a declaration that the marriage was terminated by her husband’s death. The motion judge dismissed the wife’s motion.

The Court of Appeal allowed the appeal and ruled that the divorce order did not dissolve the marriage. It stated that the divorce order had been stayed, which prevented it from taking effect and from dissolving the marriage. 

At the time of the husband’s death, the stay had not been lifted and, therefore, the spouses were still married. It was the husband’s death that ended the marriage.

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