Arnold Schwarzenegger and Maria Shriver have just celebrated a different kind of anniversary than most – seven years of divorce litigation. While the process of separation or divorce can be lengthy, Schwarzenegger and Shriver’s case is nevertheless an unusually long one.
What is interesting about this case is that many of the traditional issues that cause a divorce proceeding to drag out do not seem to be present here. For example, when Shriver filed for divorce from Schwarzenegger in 2011, only two of their four children together were minors; aged 13 and 17. Custody of the children was seemingly not an issue, as Shriver and Schwarzenegger quickly agreed to joint custody. Now, the issue is moot as their youngest son, Christopher, is twenty years old.
In Ontario, disputes over child custody, access, and support arrangements are one of the main reasons for prolonged divorce litigation. Resolving these issues is not only an important step in the divorce process, but also a necessary one. Under section 11(1)(b) of the Divorce Act, a court will not grant a divorce until it is satisfied that reasonable arrangements have been made for the support of any children of the marriage. What this means is that until the court knows that the children will be provided for in the post-divorce environment, it will not grant the parties a divorce. If Shriver and Schwarzenegger’s case was heard in Ontario this would not appear to be an issue, given the fact that their children are now adults.
Another issue that frequently prolongs the divorce process is the division of property. Shriver and Schwarzenegger reportedly have approximately $400 million of property to split between them. While the division of large assets is a complicated and lengthy undertaking, apparently Shriver and Schwarzenegger’s financial professionals have worked out the details years ago. But what if Shriver or Schwarzenegger had delayed making a property claim?
In Ontario, section 7(3) of the Family Law Act limits applications for the division of property to the earliest of six years after the date of separation, two years after a divorce is granted, or six months after the first spouse’s death. This means that if Shriver or Schwarzenegger had put off making a property claim until now, under Ontario law they would have exceeded the limitation period and would be unable to make a claim for the division of property. However, section 2(8) of the Family Law Act does allow the court to extend the limitation period. In order to do so, the court must be satisfied that there are apparent grounds for relief, the relief is unavailable due to delays brought about in good faith, and that no one will suffer substantial prejudice as a result of the delay. Provided that Shriver or Schwarzenegger had a good reason for the hypothetical delay, and neither’s legal rights would be unduly prejudiced, an Ontario court may be willing to grant an extension in this example.
Despite the above, the biggest roadblock in Shriver and Schwarzenegger’s case is that neither one is reportedly interested in finalizing the divorce settlement. Ending a marriage is a difficult decision, and hesitation is understandable. However, undue or unnecessary delays in bringing a mutually satisfactory settlement agreement before an Ontario court takes up judicial time and resources. Therefore, much like removing a bandage, the sooner the settlement is brought before the court and accepted the better.
Ultimately, the delay in Shriver and Schwarzenegger’s divorce could be caused by a number of factors. Only time will tell whether Shriver or Schwarzenegger will eventually go through with it. For assistance in resolving your family law matter in a potentially timelier manner, please feel free to call us at (905) 581-7222 to book an initial consultation.