Although Canada has a no-fault divorce system, which means that it does not matter whose fault it is that the marriage broke down, this does not mean that anyone can automatically get divorced. There are still many criteria that have to met and hurdles to jump through. In fact, people are often surprised that their petition for divorce has been denied by the judge or that they have to provide a lot of additional information before they can finally complete their divorce.
Here are some of the more common reasons that a divorce may be rejected or not granted by the court.
- Section 11 of the Divorce Act – Inadequate Child Support.
- Failure to Meet Residency Requirements.
- No Clearance Certificate
- Failure to Make Out Grounds of Divorce.
- Collusion /Condonation.
Let’s have a look at each of these issues and how they may apply to you.
1. Section 11 of the Divorce Act – Inadequate Child Support.
This is one of the most common problems that prevents or delays a divorce. Under section 11 of the Divorce Act a judge must not grant a divorce until they have satisfied themselves that proper arrangements have been made for the support of any dependent children. What that means in practice is that if there are any children under the age of majority, or over the age of majority and still attending school or dependent in some other way, there has to be adequate child support.
What constitutes adequate child support will depend on the income of the payor parent and the custody arrangement (whether it be shared or otherwise). And so this means that even when the parents have come to an agreement among themselves on how much child support should be paid, the judge still needs to determine a) the income of the parents and b) whether the amount of child support is adequate in the circumstances. In practice this means that you cannot normally forego child support, even if you do not want or need it, because child support is the right of the child and cannot be waived. Similarly, an inadequate amount of child support can lead to the divorce petition being rejected. So too can inadequate financial disclosure or information. Ironically, if you do not know how much your ex-spouse earns, your divorce can be stalled or rejected until you get financial disclosure. In some cases this issue can cause a great deal of delay and inconvenience.
2. Failure to Meet Residency Requirements
You and your spouse cannot file in any province of your choice; you must meet residency requirements. This is mainly to prevent forum shopping where a party to a divorce could otherwise file in a different province from where the parties lived as a married couple just to inconvenience the other side or gain some tactical advantage. The legislation requires that you can only file for divorce in a particular province if either you or you ex-spouse have lived there for at least one year. This can often create problems, if you or your spouse are relative newcomers to a province and may require waiting until you have lived there for a full year.
3. No Clearance Certificate
The Divorce Act prohibits multiple filings for divorce. There can only be one divorce case at the time. This is to prevent the ex spouses filing in different jurisdictions or cities and setting up competing court cases at the same time.
Before a divorce can be granted, the court will require a certificate from the Central Divorce Registry in Ottawa (known as the CDR Certificate) confirming that your divorce petition is the only one that has been filed and that neither your or your spouse has commenced court proceedings elsewhere. In some cases, the CDR comes back showing that one party has already filed and this means that your Petition for divorce may be cancelled.
4. Failure to Make Out Grounds of Divorce
Technically there is only one ground for divorce: marriage breakdown. However this can be established by a one year separation, or by adultery committed by the other spouse, or by showing that you were the victim of physical or mental cruelty. Usually it is fairly easy to establish one of these grounds for divorce, especially of you are relying on a one year separation. The other grounds are more controversial and sometimes the other side will contest the claim. After all, no one wants to be branded an adulterer or abuser. However, even when applying for a divorce based on the less controversial ground of a separation, there may be problems. It may be difficult to establish that you have really been separated for a whole year if there is a difference of opinion on when you actually separated or if there have been periods of attempted reconciliation when you and your spouse resumed cohabitation and re-set the clock on the one year count down.
This issue may arise if you are seeking a divorce on the grounds of adultery. Although the Divorce Act uses a no-fault model, when it comes to petitioning on the grounds of adultery, you cannot rely on your own adultery. In other words, the spouse who cheated cannot ask for a divorce on the basis of adultery if they are the adulterer. In a related concept, the innocent spouse cannot obtain a divorce on the basis of adultery if they were okay with the other spouse cheating (collusion) or if they forgave them (condonation). So for example, a couple who had agreed to an open marriage cannot complain that the other spouse took advantage of this permission. Similarly, if you find out that your spouse cheated but you forgive them and reconcile, you cannot use this past transgression against them years later if the marriage does not work out.