Hello, my name is Veronica Yeung and I am a lawyer at the Feldstein Family Law Group.
I am here to discuss options you have when separating from an uncooperative spouse.
The separation and/or divorce process can be emotionally difficult and exhausting. This is a completely normal and human reaction. The tough part is where one spouse does not (or cannot) accept the reality that the marriage or relationship is over and continues to insist on repairing it even when there is no chance of reconciliation. It is not uncommon for a spouse in denial to refuse to cooperate with the separation process in an attempt to either delay the separation or make separation unpalatable for the one who has moved on.
Rest assured, an uncooperative spouse does not prevent you from separating, divorcing, or resolving the issues arising from separation.
Your spouse does not need to cooperate for you to separate or divorce them. If they refuse to cooperate, you have options.
Where a spouse is uncooperative, it may be impossible (or extremely difficult) to engage in settlement discussions or alternative dispute resolution to reach a private resolution and a fulsome Separation Agreement resolving all issues.
This means that you will need to seek the Court’s assistance in moving the matter forward through litigation by commencing a Court Application.
Your spouse will need to be served your Court Application, but this can be done by a process server or another adult who is not a child of the parties. The process server or other adult must deliver your court documents directly to your spouse in person. Your spouse does not need to do anything except be found and handed the documents. The process server or other adult will sign and date an Affidavit swearing that they personally handed the documents to your spouse. If your spouse is not at home when service is attempted, service can be considered effective if there is another adult who appears to reside where your spouse is residing, and the Application is left with them. A copy of the Application would then be forwarded to your spouse by regular mail the next day.
After your spouse is served with your Application, your spouse then has 30 days under the Family Law Rules to respond to your Application by serving an Answer and filing it with the Court. The court has the authority to make a final determination in your matter on the basis of your Application materials alone if your spouse does not respond with an Answer.
If your spouse does respond with an Answer, the court matter will proceed and all issues arising from your separation will be addressed in the court process.
In my experience, sometimes an uncooperative spouse will realize the seriousness of the separation once litigation has been initiated. Once the matter is in the court process, it is not uncommon for an uncooperative spouse to be persuaded by their counsel (if any) or by a judge, to try and resolve the matter through alternative dispute resolution options such as Mediation, Arbitration, or Mediation/Arbitration rather than proceeding to trial.
To summarize, an uncooperative spouse cannot stop you from separating and/or obtaining a divorce. A family law lawyer can help you access the options available to you.
If you would like more information on this or other issues, please visit our website at www.separation.ca. If you would like advice on your own family law matter, please call 905-581-7222 to book a free initial consultation.