In Ontario, it is possible for spouses to get a divorce before resolving the other issues arising from the breakdown of their marriage. A request to sever the divorce typically arises in complex, financially complex separations where one or both spouses want to move forward with a divorce, but have not yet resolved other issues such as property division, support payments, and/or parenting.
Ontario courts have the discretionary power to sever a divorce order 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.
This discretionary power is found in Rule 12(6) of the Family Law Rules, which states that the court may split a divorce from the other issues in a case if:
(a) neither spouse will be disadvantaged by the order; and
(b) reasonable arrangements have been made for the support of any children of the marriage.
It’s important to note the court’s power to sever a divorce is discretionary. It does not have to sever a divorce simply because it has the power to do so.
Recently, in Zantigh v Zantigh, Justice Raikes makes clear that while the courts “may” split a divorce from the other issues in a case, they can still refuse to do so even if no disadvantage or direct prejudice arises from granting the divorce order.
Zantigh v Zantigh is a high-conflict case. The parties married in 1996. They could not agree on a date of separation. He said 2011. She said 2015.
The parties have two children together (aged 21 and 19). Both children had been living with the husband since separation. The wife continued to live in the matrimonial home and had never paid child support. She had two sources of income: Canada Disability Pension and spousal support.
At a Case Conference in December 2015, the parties agreed, on consent, that the husband would pay the wife spousal support while the parties jointly retained a financial expert to value the husband’s interest in the family business and determine his income for support purposes.
In January 2021, the husband sought an order to sever the divorce from the financial issues. The wife opposed his request. She alleged that he: (1) failed to make full financial disclosure; (2) failed to provide requested information to the financial expert; (3) failed to pay full spousal support (and is in arrears of $26,000); (4) failed to pay his share of property tax and insurance on the matrimonial home; (5) has no specific intention to remarry; and, (6) does not meet his burden of showing that she will not be disadvantaged by the divorce.
The language in Rule 12(6) provides that a divorce may only be severed if it does not create a disadvantage for either spouse. Here the word “disadvantage” means a legal disadvantage. In Zantigh v Zantigh, the wife alleged that severing the divorce would cause her to lose coverage under the husband’s health insurance, which creates a legal disadvantage. The husband refuted this claim. He alleged he opted out of his company’s health insurance in 2012 and, as a result, the wife is not covered (nor has she been covered by his health insurance since 2012). The wife denied this, claiming that she used his health benefits in 2015. Neither party provided any evidence to support their respective positions.
Without any evidence, Justice Raikes was unable to determine whether the wife would suffer a disadvantage as a result of severing the divorce. Therefore, the husband’s request was denied. Justice Raikes went on to state that even if the husband could prove that the wife would not be disadvantaged, the court would still refuse to sever the divorce in this case because of the husband’s conduct.
The husband failed to provide full and timely disclosure and had not complied with several court orders, including orders for financial disclosure and spousal support (he had only paid part of his spousal support obligation). Even if the husband could prove on a balance of probabilities that severing the divorce would not disadvantage the wife, his request would be denied because granting his request would signal that “his conduct to this point is of no consequence”. And as Justice Raikes states: “That cannot be”.
The Court may refuse to sever a divorce “where doing so would not be efficient or where the moving party has failed to comply with court orders or the rules including financial disclosure.”
Severing a divorce still requires you to meet the basic requirements for a divorce under the Divorce Act. Spouses must still establish that there has been a breakdown of the marriage.
This means that even if the court has discretion to sever a divorce, a divorce will only be granted if it complies with the requirements of the Divorce Act. The parties must be living separate and apart for at least one year or establish that one of the other grounds for the breakdown of a marriage is present (adultery or physical or mental cruelty). In other words, spouses that have recently separated and are looking to expedite their divorce must still wait at least one year before they can request to have their divorce severed from the other issues in their case.
In Ontario, it is possible to get a divorce before resolving the other issues in the separation.
Ontario courts have the discretion to split a divorce order from the rest of the 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.
Just because the courts can sever a divorce, does not mean that they will. The courts will not sever a divorce if it is inefficient or where the requesting party has failed to comply with court orders and/or rules regarding financial disclosure.
Basic Divorce Act requirements such as demonstration there has been a breakdown of the relationship and living separately and apart for a year must still be met.
The end of a marriage is always difficult and emotional. The experienced and compassionate divorce lawyers at NULaw in Toronto can make the process easier by providing knowledgeable legal guidance and support. Contact us online or at 416-481-5604 to discuss severing your divorce.