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Court Refuses to Sever Couple’s Divorce from Other Still-Disputed Issues

Divorce Issues

Court Refuses to Sever Couple’s Divorce from Other Still-Disputed Issues

When a marriage breaks down, the former couple is left to sort out a great number of issues between them in the short term. These often include matters such as child custody, access (and related scheduling), restrictions on relocating the child, interim financial support (both relating to child support and spousal support), plus decisions relating to their mutual assets, such as who gets temporary possession of the matrimonial home, and who gets possession of any recreational properties, etc.

The list goes on and on.

The question sometimes arises whether it’s possible – or desirable – to isolate or “sever” the divorce judgment itself from all other claims in litigation between the couple, as a means of “speeding up” that part of the process, to let the couple move on with that aspect of their personal lives. This question arises most often where there are a lot of complex and contentious issues that are unlikely to get resolved anytime soon.

In a recent Ontario case, the court made an unusual – though not unheard-of – ruling: it refused to sever the divorce itself from the other disputed matters. This was despite the fact that it was a high-conflict uncoupling; it was also despite the fact that the husband was now in a new relationship and simply wanted to move on with his life.

However, under the Family Law Rules, the court is only authorized to sever the divorce from the other issues where it concludes that: a) neither spouse will be disadvantaged by it; and b) reasonable arrangements have been made for the support of any children of the marriage.

In this case, the children were well-provided for, so that was not an issue. But the court found that the wife would suffer a disadvantage if the divorce were granted now because she would lose the medical benefits to which she was otherwise entitled as a “spouse” under the husband’s current medical plan.

It was true that the husband claimed that the wife would be covered under his group insurance plan nonetheless, and in any case promised to arrange to keep her covered until trial, either way.

But the court found that the husband had not met the legal burden of proving that this was definitely the case: a letter he provided from the medical plan’s benefit specialist did not persuade the court with sufficient certainty. (And the court pointed out that the husband could have easily met that burden by providing it with a copy of the relevant group insurance plan, so that it could assess whether the wife would still meet the definition of “spouse” in the event that they divorced. However – for whatever reason – the husband had chosen not to.)

As it happened, the wife had a number of health-related conditions, which it all the more prejudicial to her if the benefits ceased with the divorce Order. However, the court added that “even if [the wife] was completely healthy, the loss of medical coverage would still be prejudicial and disadvantageous.”

The court accordingly refused to sever the divorce from the other issues.

For the full text of the decision, see:

Shawyer v. Shawyer, 2016 ONSC 830 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com