Court Cases & Orders

Does Husband’s Death Affect Pending Divorce Order?

Written by Russell Alexander / (905) 655-6335

Does Husband’s Death Affect Pending Divorce Order?

Does a spouse’s sudden death trump an in-process divorce, or is it vice versa?   That was the legal question for the Ontario Court of Appeal in a case called White v. White, which featured a quirky set of facts.

The husband had applied for a divorce from the wife, and the court granted it.  However, before that divorce became final (which under Canadian law is on the 31st day after the divorce judgment) the wife obtained a court order for a “stay” – which had the legal effect of suspending the divorce proceedings entirely.  It seems that certain of her responding materials on the divorce application had not been brought to the judge’s attention.   There was no time-limit on the stay, however; it stated only that the divorce was stayed “pending further court order.”

As it turned out, the husband died before the stay could be lifted.

Since the divorce was never truly finalized, it was arguable that at the moment he passed away, the husband and the wife were technically still married.  This was an important point for estate purposes since it affected the wife’s tentative entitlement under the deceased husband’s Will.  Sure enough, a dispute arose soon after between the wife and the husband’s adult children as to whether the marriage was terminated by divorce, or by the husband’s death.

The wife went to court to have it untangle the legal effect of this unusual scenario.

First, she brought a motion asking the court for an order “discontinuing or terminating” the pending Divorce Order, and declaring instead that the marriage was terminated the moment the husband died.  The wife’s motion was dismissed, and she appealed.

The Court of Appeal overturned the earlier ruling.  The Court’s reasoning was this:

  • The Divorce Order, which was still in process when the husband died, did not have the effect of ending the marriage. That was because, under the wording of the Divorce Act, any marriage is only considered “dissolved” when divorce judgment “takes effect” – which is 31 days after the judge issues it.
  • In the usual course, a couple remains legally married during those 31 days.
  • However, If one of the spouses dies during that period, the judgment granting the divorce simply cannot take effect.

Turning next to the effect of the stay:  the court reasoned that at the time of the husband’s death, the Divorce Order was still in a state of suspension:

In this instance, the Divorce Order had been stayed until further order of the court, which prevented it from taking effect and from dissolving the marriage.

At the time of Mr. White’s death, the stay had not been lifted and the parties were still married. It follows that it is Mr. White’s death that ended the marriage.

In light of this conclusion, the wife’s request to terminate the marriage through divorce was superfluous. Still, the court also ordered that the Divorce Order was to be permanently stayed. The Court also clarified that the order did impact the wife’s right to seek any claim against the deceased’s husband’s estate.

For the full text of the decision, see:

White v. White, 2015 


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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.