Divorce is the legal termination of a marriage. Even if you are separated and living apart, you remain married until a divorce is obtained. It can be a stressful process, even for those spouses that have already been separated. 

This article looks at the circumstances under which you can seek a divorce under Canadian law as well as when a divorce may not be granted. We also look at a recent decision of the Court of Appeal for British Columbia in which a spouse opposed divorce, alleging that prejudice would result if it were granted.  

When can you get a divorce?

Under the federal Divorce Act, a court may grant a divorce if there has been a breakdown of the marriage, which means:

• The spouses have lived separate and apart for at least one year preceding the determination of the divorce proceeding; or
• The spouse not making the application has, since celebration of the marriage, either committed adultery or treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

This change can only be made by a court. Either or both spouses may apply. If granted, a divorce order legally terminates the marriage between spouses, who may then remarry in the future. 

When will a divorce not be granted?

The court has a range of duties and must satisfy itself with a number of things before granting a divorce. For example:

• If it appears that there is a possibility of the spouses reconciling, the court needs to adjourn the proceedings for a period.

• The court needs to satisfy itself that there has been no collusion in relation to the application and to dismiss it if there was.

• Reasonable arrangements must have been made for the support of any children of the marriage; otherwise the court will delay the divorce until such arrangements are made.

• If a divorce is sought because of adultery or cruelty, the court needs to satisfy itself that there has been no condonation or connivance on the part of the spouse bringing the application. If this has happened, the application needs to be dismissed unless the public interest is better served by granting the divorce.

Husband seeks divorce after living separate and apart for over one year

In Gill v. Benipal, a husband filed for divorce after living separate and apart from his wife for about 18 months. The couple was married in 2016. He resided in Canada and travelled to India for the wedding, where his wife resided. They lived together in India until mid-2017, at which point he returned to Canada. They had no children. His efforts to sponsor her to immigrate to Canada were unsuccessful, and he desired to remarry.

The wife opposed the divorce and filed a counterclaim seeking a division of property and spousal support. She expressed concern that he would have no incentive to deal with these issues if a divorce were granted and that it had been difficult for her to communicate with him from India.

Supreme Court declines to grant divorce due to a potential risk of prejudice

Justice Blake found no suggestion of collusion, adultery or cruelty but declined to grant a divorce. The court decided that the alleged risk of prejudice to the wife outweighed the reasons given by the husband for wanting a divorce, namely a desire to remarry and move on with his life.

The court found a potential risk of prejudice because the wife resides in India and has had difficulty in instructing counsel and considered that the husband had provided inadequate financial disclosure. The husband appealed to the Court of Appeal.

Court of Appeal grants divorce, finding no actual or reasonable likelihood of prejudice

Justice of Appeal Frankel explained that a judge may grant a divorce on the application of one spouse prior to the parties settling or receiving judgment on property and support issues if there is no substantial risk of prejudice to the other spouse. 

The Court of Appeal held that the trial judge erred in requiring the husband to provide reasons for granting him a divorce that outweighed the risk of prejudice alleged by his wife. Importantly, it is the party opposing the divorce who must establish that granting the divorce would give rise to actual prejudice or a reasonable likelihood of prejudice before the burden shifts to the applicant to show that the order should be granted in any event. Furthermore, the prejudice to the party opposing the divorce must arise from their loss of status as a spouse.

His Honour explained that while the wife resides in India, there is nothing to suggest that any difficulties she may face in advancing her property and support claims as a result of being out of the country will be exacerbated by the granting of a divorce. Nor would a divorce detrimentally impact her ability to instruct counsel. Furthermore, declining to grant a divorce cannot be used to pressure a party to settle other claims.

Given that the wife failed to show that actual prejudice or a reasonable likelihood of prejudice would flow from her loss of status as a spouse, Justice of Appeal Frankel allowed the appeal and granted the divorce.

Contact Meridian Law Group in Vancouver for Experienced Legal Advice on Divorce

Meridian Law Group understands the effect of separation and divorce on the family dynamic. We help clients navigate the divorce process quickly and effectively so their families can move forward without delay.

The dedicated family lawyers of Meridian Law Group have extensive experience representing clients in divorce matters. We skillfully advocate for clients in any legal forum, whether negotiation, mediation, arbitration or litigation. Located in downtown Vancouver, the firm proudly represents clients throughout West Vancouver, North Vancouver, Coquitlam, Penticton, Kelowna, Richmond, New Westminster, Burnaby, Surrey, Langley, and White Rock. To arrange a confidential consultation for your family law matter, please call 604-687-2277 or reach out online.