Your ex wants to get divorced. Can you oppose it? The short answer is no. The long answer is, it depends.
Divorce Law in Canada
Divorce in Canada is governed by the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). Divorce only requires the consent of one party in Canada. The public interest is tipped towards giving people the freedom to get divorced in the proper circumstances without unnecessary prejudice and hindrance, such as a resentful ex withholding divorce as a bargaining chip.
Grounds for Divorce
The threshold for divorce is based on marriage breakdown through either one year of separation, adultery, or cruelty. However, there are situations in which divorce can either not be granted or be deemed premature at a certain point in proceedings by the court.
Legal Provisions and Exceptions
According to s. 11 of the Divorce Act, it is the duty of the court to bar divorce if:
a) there has been collusion involved in the application for divorce;
b) reasonable arrangements for Child Support for the children of the marriage have not been made; or
c) there has been condonation or connivance on the part of one spouse in the divorce proceedings.
Specific Conditions Under the Divorce Act
Section 11(a) means the parties are lying about some aspect of the divorce application and are committing fraud against the court.
Section 11(b) means the parties must make sure arrangements for Child Support, according to the federally-mandated guidelines, are in place before divorce is granted. For the purposes of divorce, the court is only concerned with whether the Child Support arrangements are made, not necessarily whether they are being paid. These arrangements can be made through a Separation Agreement, Court Order, or otherwise.
Under s. 11(c), condonation and connivance are for divorce proceedings based on adultery and cruelty. The court can find that one spouse forgave the other for adultery or cruelty or that one spouse helped the other carry out the act.
Common Law Considerations
According to common law, divorce applications can also be stayed if granting divorce will seriously prejudice one party. The onus on proving this prejudice is placed on the party opposing divorce. The burden then shifts to the other party to show that divorce should still be granted.
Case Study: Gill v. Benipal
In a recent BC Court of Appeal case, Gill v. Benipal, 2022 BCCA 49, the Court of Appeal overturned the trial judge’s decision to not grant divorce to the Applicant.
The Respondent claimed prejudice would flow from her loss of status as spouse as she was in India during the pandemic, had difficulty instructing counsel, her ex had provided inadequate financial disclosure, and her ex would not have any incentive to deal with financial issues if divorce were granted. The latter is a common claim in delaying divorce, as there is a concern once divorce is granted that one party will no longer cooperate in property and asset division through loss of status as spouse of the party opposing divorce.
Although she had valid concerns, the court was not satisfied that the Respondent had suffered prejudice and divorce was ultimately granted. Since the onus is on the party opposing divorce to show prejudice, the trial judge had erred in requiring the husband provide reasons for granting divorce. In particular, the Court of Appeal referred to a passage from Daley v. Daley [[1989] B.C.J. 1456 (S.C.)], emphasizing that delaying divorce should not be used as a bargaining chip:
“The granting of a divorce, properly before the Court, should not be withheld as a means by the Court to force either party to enter into a settlement of other issues in the proceedings. The Court, at this stage of the proceedings, in any event, is not in a position to decide whether a party’s refusal or tardiness to settle a claim results solely from his or her intransigence, from an over abundance of caution, or from some valid reason for so acting.”
Pax Law can help you!
Our lawyers and consultants are willing, ready, and able to assist you. Please visit our appointment booking page to make an appointment with our family lawyer; alternatively, you can call our offices at +1-604-767-9529.
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