In the recent case of Zantigh v Zantigh 2021 ONSC 2312, the court was tasked with determining whether to sever a divorce from the corollary relief.
This litigation was very high conflict and involved mutual distrust between the parties and their respective counsels. The parties were married in August of 1996 and disagree rather significantly on the date of separation. The husband suggests the parties separated in November of 2011 while the wife suggests that it was May of 2016. This motion was initiated by the husband who wished to sever the divorce from the corollary relief, the wife opposed this as she feared that she would be disadvantaged by this decision.
In Ontario, Rule 12(6) of the Family Law Rules allows a court to sever a divorce from the other issues if neither spouse will be disadvantaged by this decision and if reasonable arrangements have been made for the support of the children of the marriage. Justice Raikes in this case made it clear that while this rule gives courts the discretion to sever a divorce order, it by no means mandated them to sever a divorce order in any specific circumstance. Even if there is no direct prejudice from the granting of such an order, Justice Raikes specified that the court still has the discretion to refuse to sever where doing so would not be efficient or where the moving party has failed to comply with court orders of the rules including financial disclosure. In this case the husband had not provided all the documents that were ordered by the Court and had not provided any proof to dispute the claim that he was in arrears for spousal support.
Additionally, this rule is specific for Ontario as severing a divorce from corollary issues is not as common in other provinces. The term “disadvantage” used in the context of this rule means a legal disadvantage that the responding party may suffer if the divorce is severed and granted. A disadvantage could result if severing the divorce would or could deprive the other spouse of medical benefits. The onus of establishing that the responding party will not be prejudiced by this severance rests on the applicant. In this matter, Justice Raikes was not satisfied on the evidence that no prejudice would result by granting the order to sever. Moreover, the Justice found that severing the divorce from the corollary relief signals to the husband that his conduct leading up to this motion is of no consequence. As a result the court denied the husband’s request for a divorce without prejudice to a future request after a settlement conference and after the husband provide the required disclosure
For more information, please call us at Feldstein Family Law Group P.C. or contact our firm online.