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.