Not So Fast: Why Some Judges May Refuse to Grant a Divorce

The end of a relationship is very difficult. There are many issues to work through and many decisions to make. Given the range of emotions involved, many separated spouses find it difficult to deal with legal issues and often ask to proceed with divorce as quickly as possible.

Canada has no-fault divorce. The only ground for a divorce in the Divorce Act is marriage breakdown. The Divorce Act provides that a spouse can show their marriage has broken down if any one of the following criteria applies to them:

  1. you have been living apart for one year or more;
  2. your spouse has been physically or mentally cruel to you; or
  3. your spouse has committed adultery.

While many separated spouses meet one or more of the above criteria, they are unable to obtain a divorce. Why?

One reason is that the Divorce Act provides that a court must be satisfied that reasonable arrangements have been made for the support of any children of the marriage before granting a divorce. Reasonable arrangements mean that money or financial plans have been made to look after the children of the marriage. For example, plans have been made for child support. To satisfy the court that reasonable arrangements have been made, spouses, either between themselves or with their respective counsel, often prepare a separation agreement or parenting plan to accompany the Affidavit of Divorce.  

If you have recently separated from your spouse, remember that failure to make reasonable arrangements for the support of any children of the marriage may mean that a judge will refuse to grant a divorce.

Looking for guidance related to your separation or divorce? Contact Malorie Mosher, Associate Lawyer at Lockyer + Hein LLP to learn more: / 289.748.7567

Malorie Mosher – Associate Lawyer


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