The process of divorce typically involves the participation of both members of a marriage. In a recent case before the Ontario Superior Court of Justice, a woman didn’t know that her husband had divorced her, and appeared before the court seeking to overturn the divorce.
The parties separate
The parties started living together in 2003. They were married on August 6, 2011 and separated on June 12, 2014. They had one child while together. At the time of the separation, their child was seven-years-old.
The husband applied for a Simple Divorce Application nearly four years after the couple separated. Simple Divorces are available for couples with no issues other than the divorce itself, such as custody, access, or support. Applications for a Simple Divorce can be prepared by either one spouse or both spouses in a relationship. However, if an application is prepared by just one spouse, it must be served on the other spouse after the divorce has been issued by the court.
Divorce is granted
The divorce was granted on January 17, 2018 after the husband provided evidence by way of affidavit. On February 28, 2018, the parties and their lawyers were negotiating some remaining matrimonial issues. It was at this meeting that the wife claimed she first heard the husband had obtained a divorce.
The husband remarried approximately one month later, on March 25, 2018. On May 22, the wife brought a motion to set aside the Divorce Order. Che claimed she was never served with any documentation relating to the divorce. She also said the husband lied in his Affidavit for Divorce, particularly around whether he was paying child support. Finally, she also stated “there are major issues that need to be resolved between us before a divorce is granted.”
The court weighs its options
The court first sought to determine if it would be acceptable to the wife to sever the divorce from the other issues between the couple, meaning the divorce could still be in effect, but any issues relating to support, custody, or access, could still be determined by the court. The wife’s lawyers stated that such a solution was not acceptable, but did not provide any reasons why. Instead, the wife’s lawyer argued that the husband’s Affidavit for Divorce contained false statements and, as such, the divorce should be set aside.
The court considered the impact that setting the divorce aside could have on the husband, who had since remarried, stating “ In this case, there is real prejudice to the Husband. He is remarried. His new wife will be prejudiced. He will be ‘disadvantaged’ if the order sought is granted as will his new spouse.” The court pointed out that severing the divorce from other issues should be an acceptable resolution, and determined the wife’s motivation in trying to get the divorce set aside was to exact leverage on the husband regarding relief being sought.
The court declined the wife’s request to set aside the Divorce Order. Instead, the court severed the divorce from the outstanding issues.
Jason Howie has been providing family law advice to members of Windsor and Essex County for over 25 years. His calm, rational, approach to divorce aims to help his clients through a difficult time while protecting their interests and staying focused on their real objectives. Jason Howie can be reached at 519.973.1500 or online. Please contact us today in order to set up your first consultation.