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Severing a Divorce from the Corollary Issues

Severing a Divorce from the Corollary Issues

 

While the term “divorce” in everyday life broadly refers to separating couples and all the associated stress, the “divorce” itself is usually one of the simplest legal issues in family lawyer circles. Generally, disputes over custody, access, support, and property division are rightly at the forefront of family law disputes. In the end, all that is left is a series of procedural matters to obtain the official order for divorce.

In some situations, however, spouses seek to obtain a divorce before the remaining issues are dealt with. This is known as “severing the divorce from the corollary issues”. The specific legal test is found in both the Divorce Act and, in Ontario, the Family Law Rules.

Rule 12(6) of the Family Law Rules states as follows:

(6) The court may, on motion, make an order splitting 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


Section 11(1)(b) of the Divorce Act further states that the court must be satisfied that there are reasonable arrangements in place for the support of the children having regards to the application Guidelines.

In practical terms, the case law has interpreted this to mean that divorces usually get severed when the issues of child support and health insurance for your spouse are resolved.

In terms of child support, while “reasonable arrangements” can encompass a variety of child support arrangements, the Child Support Guidelines generally must be complied with. If there is an issue as to whether child support should be paid at all, or how much support should be paid, it may be difficult to obtain a divorce before this gets resolved.

Regarding being “disadvantaged” by the divorce order, it is commonplace for people to maintain employment benefits and health insurance for their spouses. Obtaining a divorce would mean that you are no longer “spouses”, which would disentitle your dependent spouse from those work benefits/insurance. This may be considered a “disadvantage” under Rule 6(a) of the Family Law Rules, preventing the divorce from being granted. A simple workaround, however, would be to obtain private health insurance for your spouse.