CONSENT AND CONTESTED DIVORCES IN ONTARIO
Navigating a divorce can be a complex and emotionally charged process, particularly when one spouse is unwilling to consent to the dissolution of the marriage. In such situations, the legal journey becomes more intricate, demanding careful consideration of legal strategies and empathetic handling of emotions involved. This refusal to grant consent often leads to challenging negotiations, potentially requiring mediation, legal intervention, or even court proceedings. In this context, understanding the legal options, respecting the emotional complexities, and pursuing a fair resolution becomes paramount.
Regrettably, marriages can break, and in certain circumstances, one partner may resist accepting a divorce. This refusal may stem from an unwillingness to acknowledge the end of the relationship or conflict due to personal beliefs. It is important to note that under Ontario laws, obtaining your spouse’s consent is not a mandatory requirement for a divorce. Although having your spouse’s consent can streamline the process, if that proves impossible, there are alternative avenues to explore.
LEGAL TEST FOR THE BREAKDOWN OF A MARRIAGE
“Consent” of the spouses is not the legal test for divorce in the Divorce Act. Instead, as per section 8(2) of the Divorce Act, the test for granting a divorce in Ontario is whether there has been a “breakdown of a marriage.”
You can prove to the court that your marriage has broken down in one of three ways:
- You and your spouse have lived separate and apart for at least one year.
- Your spouse has committed adultery.
- Your spouse has treated you with physical or mental cruelty.
Once you have established one of these three grounds, you are eligible for a divorce without the need for consent from your spouse. Next, we will discuss the difference between uncontested and contested divorces.
UNCONTESTED VS CONTESTED DIVORCES
An uncontested divorce is a divorce in which both spouses agree on all key terms without the need for court intervention. A legally binding separation agreement formalizes the arrangement. Once all corollary issues, if any, have been dealt with by way of a separation agreement, you may apply for divorce online, without the need to go to court.
A contested divorce occurs when your spouse disputes some or all of the issues outlined in the Application. If you are filing for divorce, you must inform your spouse of the same by serving the documents on them. This allows your spouse to be informed and contest the claims you have made and to present their own arguments. As per the Family Law Rules, your spouse must respond to your Application within 30 days from the date of service (if within Canada; and 60 days if outside Canada).
If your spouse does not respond within the designated timeline, you may ask the court to grant the divorce, based on the fact that your spouse had the opportunity to oppose the divorce and chose not to. The court then assumes that the other spouse either agrees with the divorce or does not have an opinion, and the matter proceeds uncontested. This is also referred to as an ex-parte motion.
WHAT IF I CAN’T LOCATE MY SPOUSE OR IF THEY’RE EVADING SERVICE OF A DIVORCE APPLICATION?
Even if you are unaware of your spouse’s whereabouts, or if your spouse is actively avoiding being served with divorce papers, it is still possible to proceed with the divorce process. The purpose of these legal documents which essentially include the Application is to formally inform your spouse of your intention to initiate divorce proceedings. You are obligated to make every reasonable effort to locate and serve the divorce documents on your spouse, often accomplished by hiring a process server who physically hands the papers to them.
SUBSTITUTED SERVICE
Substituted service refers to a legal process where court documents, such as summons or notices, are delivered to an individual in a manner different from the typical method of personal service. This alternative method is used when it is difficult to serve the documents directly on the opposite party. Substituted service methods vary by jurisdiction but commonly include options such as mailing the documents, posting them in a public place, or publishing them in a newspaper. Once the court approves the substituted service, it is considered legally valid and allows the legal proceedings to move forward even if the recipient did not receive the documents through traditional personal service. We will now analyze a few case laws that serve as a vital foundation for a thorough exploration of this topic.
In Bakker v. Bakker 2023 ONSC 3025, the wife tried to serve the husband with her pleadings over several months, but the husband evaded service. Ultimately, she brought a 14B motion seeking to serve him by way of a substituted method. The court granted her an order allowing her to serve her documents via email. In spite of serving the husband with the documents on email, the husband did not respond. The court noted the husband in default and directed that the matter may proceed uncontested.
Family Law Rule 6(15) provides that a Court may order that a document be served by substituted service, using a method chosen by the Court, where the party making the motion establishes that steps have been taken to locate the person to be served and that the method of service proposed could reasonably be expected to bring the document to the person’s attention.
In the case of Tiwari v. Tiwari 2018 ONSC 6697, the Applicant filed a motion for substituted service to serve a Divorce Application on her husband, the Respondent, in India via email and regular mail. Legal documents were sent to the Central Authority of India as per the Convention’s guidelines. Despite receiving an acknowledgment from the Central Authority of India, no further updates or a certificate of service have been provided, even after multiple follow-up attempts by the Applicant’s Ontario legal counsel.
The court was satisfied that the Applicant had taken proper steps to locate the person to be served and to attempt to serve that person with the Application for Divorce and granted her motion for substituted service.
CAN I STILL GET A DIVORCE IF THE CHILD CUSTODY AND SUPPORT CLAIMS ARE UNSETTLED?
The short answer is no.
The long answer relies on section 11(1)(b) of the Divorce Act. The court is reluctant to grant a divorce without satisfactory arrangements for child care and support, prioritizing the child’s welfare. The case may be postponed to allow parties to establish an appropriate parenting plan. Finalization of the divorce is discretionary and will occur only when the court is assured that suitable arrangements are in place and will be maintained.
To discuss the intricacies of divorce and the viable pathways available, please contact us by booking a discovery call on https://nazarianlaw.ca/contact/.
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Disclaimer
The content provided in this article or blog is for informational purposes only. It is not intended to constitute legal advice or to replace the advice of a qualified legal professional. While we strive to provide accurate and current information, the law is complex and constantly changing, and each person’s circumstances are unique. Therefore, you should not rely on this information as a substitute for professional legal advice. This information does not create an attorney-client relationship between you and our law firm. We strongly recommend that you consult with a qualified attorney in your jurisdiction to understand your legal rights and obligations. Always seek legal advice before making any decisions that may impact your legal rights or obligations.
