When Can a Judge Refuse a Divorce?

When must judges refuse to grant a divorce?

In a previous article I explained that Canadian law requires that there has been a breakdown of the marriage before a divorce can be granted. I also explained the three ways to prove that a marriage has broken down. In this article, I am going to explain four reasons that a judge can refuse to grant a divorce. A judge can refuse to grant a divorce if

1. the judge is not satisfied that reasonable arrangements have been made for the support of the children;
2. there has been collusion;
3. if the divorce is proceeding on the basis of adultery or cruelty, there has been connivance or condonation; or
4. granting the divorce will prejudice one of the parties and there is no pressing need for an immediate divorce.

Reasonable Arrangements for the Support of Children

According to section 11(1)(b) of the Divorce Act, a judge must be satisfied “that reasonable arrangements have been made for the support of any children of the marriage, having regard to the applicable guidelines” before granting a divorce. If the judge is not satisfied with the child support arrangements, the judge will refuse to grant the divorce until “reasonable arrangements” have been made.

In many cases, it is easy to tell whether reasonable arrangements have been made for the support of children. The default rule for calculating child support under the Federal Child Support Guidelines makes calculating child support simple.

Sometimes a spouse will tell me that they are not receiving any child support. They do not want to fight about child support and they “just want a divorce”. This is understandable, but judges do not have a choice. The law says that every judge must satisfy themselves that reasonable arrangements have been made for the support of the children before granting a divorce.

When parents share custody of their children, the default rule does not apply. Instead, section 9 of the Federal Child Support Guidelines applies. This means that the amount of child support can become a bit more of a gray area. The starting point for calculating the amount of child support is the set-off between each party’s table amount. Section 9 says that the set-off can then be adjusted upward or downward, depending on the case. However, just because the amount of child support can be adjusted, that doesn’t mean parents can do anything they want. A judge still needs to decide whether the amount of child support is reasonable.

Sometimes parents who share custody will agree on an amount of child support that is different from the set-off. However, if an adjustment is made, then there should be some evidence presented to the judge showing why that adjustment was made. Otherwise, the judge may not be able to decide whether the amount of child support is reasonable. If the judge cannot tell whether the amount of child support is reasonable, the divorce application might be rejected.

Some parties even go so far as to agree that no child support will be payable while they share custody. Unless the parents’ incomes are identical, there should be good evidence demonstrating why that arrangement is reasonable.

Sometimes parties will try to do something unusual regarding child support, such as settling child support forever by way of a one-time lump sum payment. Lump sum child support is only ordered in exceptional circumstances. For example, I have received lump sum child support orders for my clients where the payor parent has left the country and it would be impossible or impractical to get them to pay child support. In those cases, child support was paid as a lump sum out of their share of family property. In the vast majority of cases, however, lump sum child support will not count as “reasonable arrangements” for the support of children.

If you are thinking about doing anything creative or unusual when it comes to child support, contact a lawyer first to understand whether, in your circumstances, it might prevent you from getting a divorce.

What happens if it is impractical or futile trying to get child support from someone?

Sometimes a parent cannot be found, or has relocated to another jurisdiction and won’t provide financial information. If it is impractical or futile to get financial information from a spouse, or a child support order against them, then the Court might allow the divorce to proceed without child support being in place. See, for example, the case of Zarebski v. Zarebski, 1997 CanLII 12245 (ON SC). However, there should be very clear evidence as to why it is impractical or futile to try to get child support out of that parent.

Collusion

Section 11(1)(a) says that a judge must dismiss the application for divorce if there was collusion. Collusion in this context

means an agreement or conspiracy to which an applicant for a divorce is either directly or indirectly a party for the purpose of subverting the administration of justice, and includes any agreement, understanding or arrangement to fabricate or suppress evidence or to deceive the court …

For example, parties cannot agree to lie about their date of separation in order to get a divorce faster. Doing so can cause the divorce application to be dismissed: Wei v. Cao, 2008 BCSC 266 appeal dismissed 2009 BCCA 268.

Condonation and Connivance

A divorce can only be rejected for “condonation” or “connivance” if the divorce is proceeding on the basis of adultery or cruelty. “Condonation” means that the innocent spouse forgave or supported the adultery or cruelty. “Connivance” means that the innocent spouse had some part in helping the other spouse carry out the act.

Delaying a Divorce due to Prejudice to a Party

The court has the power to delay granting a divorce if granting a divorce immediately will prejudice a party and there is no pressing need for the divorce to be granted. The court will balance the prejudice to a party against any reason for the divorce to be granted immediately. By “prejudice”, I am referring to the legal meaning of prejudice: granting a divorce would harm a party’s legal interests in some way, such as their ability to advance claims related to the breakdown of their relationship. See for example the case of Sohi v. Sohi, 2017 BCSC 678 where Mr. Justice Blok reviewed examples of cases where divorces have been refused for this reason.