Larry King, the 76 year old CNN host and his wife Shawn Southwick have
announced their reconciliation. The parties initially began their divorce
proceedings in Los Angeles approximately three months ago. They have two
children together, Chance who is 11 years old and Cannon who is 9 years
old. Larry King told the press “We shall go through this difficult time intact as a family.”
How is reconciliation of the parties dealt with in Ontario?
Duty of Legal Adviser
In Ontario, under the
Divorce Act, the lawyers for the parties have a duty to discuss reconciliation with
their clients. The lawyer must confirm with their client the possibility
of reconciliation. The lawyer has a duty to inform the spouses of the
marriage counseling or guidance facilities known to him/her that might
be able to assist the spouses to achieve reconciliation unless the circumstances
of the case are such a nature that it would clearly not be appropriate
to do so. If for example, the Larry or Shawn had experienced cruelty and
abuse by his/her spouse during the marriage, it may not be appropriate
for the lawyer to suggest reconciliation to him or her. This may be a
judgment call on the lawyers’ part.
When commencing a divorce proceeding it should contain a statement by the
lawyer certifying that they have complied with this section in the
Divorce Act and that they have advised the parties of this section in the Act. If
the reconciliation does not last longer than ninety (90) days, then the
parties can resume their divorce proceedings again. This means that the
parties may obtain the divorce without taking into account the reconciliation.
For the strict purpose of dividing family property however, the
Family Law Act states that the date the spouses separate with no reasonable prospect
that they will resume cohabitation is the date that the court will consider
as the valuation date. Therefore, if Larry and Shawn decide to separate
once again then for the purposes of property division the ninety (90)
day rule in the
Divorce Act will not apply. Instead, the court will use the subsequent date of separation
as opposed to the date when the parties separated before reconciliation
to divide assets and equalize the net family property. Consequently, it
may be possible in certain circumstances to have two different dates of
separation: one pertaining to the divorce and one for the division of
the net family property. Bear in mind that the aforementioned may be deviated
from if a specific provision is included in a binding and enforceable
Separation Agreement.
Duty of the court
It is also the duty of the court, before considering the evidence, to satisfy
itself that there is no possibility of the reconciliation of the spouses,
unless the circumstances of the case are of such a nature that it would
clearly not be appropriate to do so. Where at any stage in a divorce proceeding
it appears to the court from the nature of the case, the evidence or the
attitude of either or both spouses that there is a possibility of the
reconciliation of the spouses, the court may either adjourn the proceeding
to afford the spouses an opportunity to achieve reconciliation. With the
consent of the spouses or in the discretion of the court, the parties
can then nominate that a person with experience or training in marriage
counseling or guidance or in special circumstances, some other suitable
person assist the spouses to achieve reconciliation. Therefore, if the
matter proceeds to court, the judge also has a duty to facilitate reconciliation
between the parties, if applicable in the circumstances.