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Baginski v Baginski, 2018 ONSC 525


After seventeen years of marriage, the parties separated. Upon separating, the parties signed a Separation Agreement resolving all financial issues resulting from the breakdown of their marriage. There were only two outstanding issues not resolved: incidents of parenting and divorce.

Notably, one of the clauses of the Separation Agreement held that the wife could obtain a divorce on an uncontested basis, which stipulated that either the husband would withdraw his answer or the wife would obtain an order severing the divorce from unresolved corollary issues.  There was an additional clause in the Separation Agreement which held that the wife had to maintain the husband on her employment medical insurance benefits for “as long as it was available to her”. However, as per the terms of the wife’s medical benefits, coverage for a spouse terminates upon obtaining a divorce.

The husband opposed the divorce on the basis that he would lose his coverage in the event that the divorce was severed.


Rule 12(6) of the Family Law Rules, holds that a Court may make an order severing a divorce, from the corollary issues if “neither spouse will be disadvantaged by the order” and if “reasonable arrangements have been made for the support of any children of the marriage”.

The husband argued that he would be disadvantaged by an order severing the divorce because he would lose access to his wife’s medical benefits plan.

The Court reviewed the relevant caselaw in order to determine the meaning of “disadvantage” as per Rule 12(6).

The Court in Al-Saati v Fahmi held that the word “disadvantage”, as used in rule 12(6)(a) of the Family Law Rules, means “legal disadvantage”.  That is, the responding party must suffer if the severance is granted.  The Court added, “it must mean more than simply allowing the divorce to be withheld or delayed as a form of leverage for other issues that can be pursued separately”.

In Collette v Collette, the Court of Appeal refused to severe a divorce because it would cause the other spouse to lose benefits such as insurance coverage and health insurance coverage prior to determination of the collar relief issues. In the case at hand, the only corollary issue remaining was a parenting issue. Notably, the parties waived spousal support in the Separation Agreement.  Consequently, the wife argued that the facts at hand were distinguishable from those of Colletta because any legal disadvantage that the husband could suffer is a loss of a form of spousal support, which he already waived.

However, Mullin v Sherlock held that, “the weight that the court, in the exercise of its discretion under Rule 12(6), gives to the loss of insurance coverage as a potential disadvantage that the other spouse may suffer as a result of the early severing of the claim for divorce depends on the evidence in the particular case”.

In the case at hand, the Court held that severing the divorce would cause no legal disadvantage to the husband’s claim for spousal support, because he waived his claim to same in the Separation Agreement. The Court noted that the only outstanding corollary issue was that of child support.

The Agreement stipulated that the wife would provide medical coverage for the husband for as long as it is available for her to do so.  However, in accordance with the medical coverage, the wife would be unable to maintain the husband on her plan upon obtaining a divorce. Consequently, the Court found that the husband could not hold up a divorce. To do so would have meant that the wife could never get a divorce, which the Court found was inconsistent with the Separation Agreement.