Last week Billy Ray Cyrus announced on
The View that he and his wife Tish are attempting to reconcile and is no longer
getting a divorce. He informed the ladies of
The View that “things are the best they’ve ever been.” He and Tish
separated in 2010 and he filed a Petition for divorce in October 2010.
The couple has 3 kids together, one of whom is Miley Cyrus, and Tish also
has 2 other adult children from a previous marriage. Billy Ray officially
withdrew his divorce filing in the Tennessee Court on March 18, 2011.
What Happens when Parties Reconcile in Ontario?
When a married couple separates in Canada in order to be granted a divorce, the
Divorce Act states that the couple must demonstrate that there has been a breakdown
of their marriage as evidenced either by:
- the spouses having lived separate and apart for at least one year immediately
preceding the determination of the divorce proceeding and were living
separate and apart at the commencement of the proceeding; or -
The spouse against whom the divorce proceeding is brought has, since the
celebration of the marriage:- committed adultery; or
- treated the other spouse with physical or mental cruelty.
In this case, there is no evidence of any adultery or mental or physical
cruelty, so we can assume that the couple would attempt to demonstrate
a breakdown of their marriage through evidence that they had lived separate
and apart for a period of at least one year.
In order to prove that they had been living separate and apart, the couple
would also have to demonstrate that during the year they actually lived
apart or that either of them had the intention to live separate and apart
from the other.
In this case, the period of one year would therefore have to lapse before
Billy Ray and Tish would be able to obtain a Divorce. The couple publicly
separated in October 2010, thus if they can demonstrate that they had
been living separate and apart since October, it would count as five months
towards the one year requirement. The period of one year will not be considered
to be interrupted either where one of the spouses becomes incapable of
forming or having an intention to live separate and apart or when the
spouses resume living together for the purposes of reconciliation as long
as this period does not amount to more than a total of ninety (90) days.
Therefore, if within 90 days from the day that Billy Ray and Tish decided
to reconcile, they decided that they cannot make their marriage work as
they had hoped, this period of time would not affect the year-long requirement.
Withdrawing an Application for Divorce
In Ontario, if, as what has happened with Billy Ray and Tish, a couple
decides to reconcile after having filed for Divorce, one of the parties
must simply serve and file what is known as a Notice of Withdrawal pursuant to the
Family Law Rules. With this notice, a party can withdraw all or part of their Application,
Answer or Reply.
Therefore, if Billy Ray and Tish lived in Ontario and he had filed the
Application for Divorce, he would simply need to serve and file a Notice
of Withdrawal to withdraw the entirety of his Application. This would
effectively revoke his claims for the Divorce and end the Divorce proceedings.
It’s important to note, however, that if Billy Ray and Tish decided
that they could not reconcile, whether or not this occurs within the 90
day period as outlined above, this would not preclude either of them from
filing an Application for Divorce at any time in the future.