Hello. My name is Shilpa Mehta, and I am a lawyer at the Feldstein Family Law Group. Today I will be discussing the issue of separating from an uncooperative spouse.
The unfortunate part of a divorce and/or separation is that this process can be emotionally difficult. This is especially the case where one party does not wish to end the relationship and insists on repairing the marriage or common law partnership. When the party requesting the separation makes clear that there is no prospect of reconciliation, the other party often becomes disgruntled and refuses to cooperate in the separation process. One party has moved on and the other digs in their heels.
Many people believe that if their spouse is uncooperative, they will not be able to divorce or settle the issues arising from their separation. There is good news: This is simply untrue.
A spouse does not need to be cooperative in order for you to get a divorce or to separate. While an uncooperative spouse makes it impossible to take part in out of court settlement discussions or employ alternate dispute resolution mechanisms in attempting to achieve a resolution, he or she cannot prevent the separation or divorce.
If the spouse is not cooperative, it is likely that the party requesting the separation will need to resort to litigation and commence an Application in family court. The other spouse can be served by a process server, or another adult who is not a child of the marriage. A process server is a person who delivers documents to your spouse. In this case, the process server or other adult will sign and date the service documents and nothing else is needed from the uncooperative spouse. In fact, the other spouse does not even need to be home and service will be considered effective so long as the Application is left with someone who appears to be an adult and resides where the other party is residing.
The Family Law Rules allow the party who is served with an Application 30 days (or 60 days when service occurs outside of Canada) to respond to an Application. If the spouse does not ‘respond’ and does not attend any court appearance scheduled in the matter, the court has the authority to make a determination in the matter on the basis of the Applicant’s materials alone. If the spouse does respond, all of the issues arising from the separation will be addressed in court.
So, a divorce can still be finalized even with a difficult spouse.
If you would like more information on this or other issues, please visit our website at www.separation.ca. If you would like advice on your own family law matter, please call 905-415-1636 to book an initial consultation. Thank you for watching.