What happens when one spouse dies before the Divorce Order comes into effect? The Ontario Court of Appeal considered this unusual issue in  the recent decision of White v White, 2015 ONCA 64.

The facts of the case are not typical. Sonia and Neville White were married. At the request of Mr. White, a divorce was granted by the court on June 10, 2013. Unfortunately, the judge who granted the divorce was not aware that Mrs. White had opposed the divorce. She brought a motion to the court on July 4, 2013 before the divorce became final and the motion judge ordered that the Divorce Order be stayed “pending further order”. In the interim, Mr. White unfortunately died.

Following Mr. White’s death, a dispute arose between his children and Mrs. White as to whether the marriage had ended by death or divorce. It was an important issue as it would have a significant impact on the disposition of Mr. White’s estate.

Mrs. White asked the court to either discontinue or terminated the divorce order dated June 10, 2013 or in the alternative, she asked for a declaration that her marriage had been terminated upon Mr. White’s death. Mr. White

The Court of Appeal found that the Divorce Order did not end Mr. and Mrs. White’s marriage. According to the Divorce Act, a divorce takes effect on the 31st day following judgment granting divorce. In the interim, the parties are still married. Because Mrs. White brought a motion and had the Divorce Order stayed before the 31st day, the Divorce Order did not take effect and did not dissolve the marriage. At the time of Mr. White’s death, the stay had not been lifted and the parties were still married.

If you have questions about your divorce or separation, please contact family lawyer Jason P. Howie, online or at 519.973.1500.

To read the full decision, click here.