Divorce Orders vs. Death of a Spouse Before the Order Comes into Effect

White v White, 2015 ONCA 647

In this unconventional matter, the Court of Appeal deals with the issue of whether the parties were divorced after the husband died while the final Divorce Order was under a stay.

Background

The husband was granted a divorce in June 10, 2013.  However, the judge who signed the Divorce Order was not aware of the Appellant wife’s Answer opposing the divorce that time.  On July 4, 2013 before the Order became final, the Appellant wife was granted an order, on motion, that stayed the Divorce Order “pending further court order”.

Sadly, the husband passed away while the stay was in effect.

After the husband’s death, there was a dispute between the Respondent’s children and the Appellant wife with respect to whether the marriage ended by death or divorce.

The Appellant wife, on motion, sought an order that would discontinue or terminate the June 2013 Divorce Order.  In the alternative, she sought a declaration that the marriage terminated on the husband’s death and not by divorce.

The motion’s judge, whose decision is under appeal, dismissed the motion on the basis that Rule 11.01 of the Rules of Civil Procedure bared the motion and that a declaration was not the appropriate remedy.

Analysis

The Court of Appeal held that the June 2013 Divorce Order did not dissolve the parties’ marriage as, according to section 14 of the Divorce Act, a marriage is not dissolved until the Divorce Order takes effect.

Normally, section 12(1) of the Divorce Act, in conjunction with section 14, means that a divorce only takes effect on the 31st day after the judgement granting the divorce.  In the period between granting the divorce and the 31st day, the parties are still legally married.  Citing Kindl, Re (1982), the Court reiterates that a judgement granting divorce cannot take effect if one of the parties dies during that intervening period.

Here, the stay on the Divorce Order until further order of the court effectively prevented the divorce from taking effect.  Legally, the parties’ marriage never dissolved.  Since the husband died during the stay and while the parties were still married, his death effectively dissolved the marriage.

As such, the order of the motions judge was set aside and the Divorce Order is permanently stayed.

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