The short answer is no. A divorce may be delayed, but ultimately not stopped as a matter of public policy.
In Canada, divorce is governed by the Divorce Act (Canada). Section 8 of the Divorce Act provides that a divorce may be granted by a court on the grounds that there has been a breakdown of the marriage. By far, the most common ground for the breakdown of a marriage is that the parties have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding, and were living separate and apart at the commencement of the proceeding.
Nonetheless, Section 11 of the Divorce Act requires the court to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage. If such reasonable arrangements have not been made, the granting of the divorce may be stayed until proper child support arrangements are made.
Section 11 prevents “quickie” divorces in situations where there are dependent children who require support. The applicant to the divorce proceeding is required to swear an affidavit attesting to the amount of child support that he or she is required to pay under the Child Support Guidelines, or is entitled to receive. If he or she is paying or receiving less than the amount required under the Child Support Guidelines, a detailed and sufficient explanation for the discrepancy must be provided to the court prior to the divorce being granted.
Further, in a contested divorce proceeding involving many issues in dispute such as parenting issues, support issues, and property issues, courts will usually not grant the final divorce until all of the “corollary” or other issues aside from the actual divorce have been dealt with, either by agreement or final court order.
The Ontario Family Law Rules provide the court with the discretion to split the divorce from the other issues and grant a divorce prior to the resolution of the corollary issues. The court will not permit a party to proceed with the divorce prior to the corollary issues being resolved if proper child support is not being paid, as discussed above, or in situations where the other spouse may be disadvantaged by the issuance of the divorce order prior to the resolution of the corollary relief issues.
A common situation where a spouse may be disadvantaged by a divorce order is where one spouse is covered by the other spouse’s health and dental benefits, but once the divorce goes through, he or she will be cut off the benefit plan and no longer considered as a “spouse” under the benefit plan. If alternate arrangements are made, such as the extension of health or dental benefits, or additional support being paid to cover the lost benefits, the divorce may be split from the corollary issues and an early divorce order granted.
Ultimately, it is public policy in Canada that parties should not be forced to remain married if there has been a breakdown in the relationship. Provided that proper child support is being paid pursuant to the Child Support Guidelines, that the corollary issues have been dealt with by way or court order or agreement, or if there is no disadvantage to either spouse to the granting of the divorce prior to the resolution of the corollary relief issues, the court will not stand in the way of a divorce.
Ken Nathens is a partner in the law firm of Nathens Siegel, a Toronto firm that restricts its practice to divorce and family-law issues. Ken has experience in all aspects of divorce and Ontario family law and devotes much of his time to assisting clients with custody and access disputes.