There are only three reasons why a judge cannot grant a divorce alone (leaving support, property and other claims to separate orders that can be made later). Neither of those three reasons relates to whether both spouses want the divorce. Those two reasons are:
- Any children are not being adequately supported financially. If there are children involved, section 11(1) of the Divorce Act mandates that there be adequate provision for them in place before a divorce will be granted. What that means, in the light of the Child Support Guidelines, is that the support must be either in accordance with the Child Support Guidelines or must be more than under the Guidelines, although the arrangements can be different. No matter the grounds for divorce or the method used to get a divorce, there must be satisfactory child support arrangements in place before a judge will grant the divorce.
- The spouse requesting the divorce is not removing religious barriers to remarriage. All a divorce order means is that the spouses are legally able to re-marry. But, the law does not mean the spouses can re-marry in their religion. A judge can deny a divorce to someone who is effectively preventing his or her ex spouse from remarrying by using his or her religion. Section 21.1 of the Divorce Act requires that a spouse who wants a divorce must file an affidavit saying that spouse has removed any religious barrier to remarriage that are within that spouse’s control. If the other spouse files an affidavit saying that is not true, that blocks the divorce. Obviously, there would be trouble for a spouse who files a false affidavit for any purpose.
- At least one of the spouses must have lived in the jurisdiction for at least a year to get a divorce in Canada. People cannot just come to Canada for their divorce. However, if neither party has lived in the jurisdiction of the Court for at least one year, then the Court probably will not even accept the Divorce Application.
Judges can also refuse to grant a divorce if the judge believes there has been “collusion” or “connivance” by the spouses – essentially the spouses are working together to get a divorce improperly. However, these are not things a spouse could raise to block a divorce.
If a judge is satisfied that the grounds for divorce exist and adequate provision for any children has been made, they will grant a divorce judgment. Once thirty days has elapsed from the date of judgment, the spouses will be legally divorced.
John P. Schuman
Devry Smith Frank LLP
John is a Certified Specialist in Family Law.
