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Can I Get Divorced If My Spouse Doesn’t Agree?

Facing a divorce when your partner disagrees can be a challenging situation. Many individuals encounter resistance due to various reasons, such as religious beliefs or reluctance to accept the end of the relationship. In Canada, obtaining a divorce doesn’t always require your spouse’s agreement, though their consent can streamline the process. This article explores the legal aspects and potential hurdles in divorces where one party is uncooperative.

For much of Canada’s history, there was no codified law of divorce. If a spouse wanted to get divorced, they would have to petition Parliament, which could grant a divorce by passing a special piece of legislation. In 1968, Canada introduced the Divorce Act, a uniform scheme for divorce across the country that continues to govern today.

Under section 8(2) of the Divorce Act, there are three grounds for divorce:

  1. Living separate and apart for at least one year;
  2. Cruelty, and;
  3. Adultery.

While any one of these grounds will entitle a spouse to a divorce, living separate and apart is for one year is the most common. Once one of these events has occurred, either spouse may apply for a divorce. If you are eligible for a divorce, there are three types in Canada:

  1. The first, and most uncommon, option is a joint divorce, where one spouse files the Application for divorce with the other spouse.
  2. The second type is an uncontested divorce. This is where one spouse files the Application for divorce, and the other spouse does not respond to it in court within the 30-day time limit. When the time limit expires, the Applicant can ask the court to grant the divorce order on the basis that the other spouse had the opportunity to oppose it and has not. The court is then allowed to assume that the spouse either agrees with the divorce, or at least does not care about it.
  3. The final type of divorce is a contested divorce. This is where one spouse applies for a divorce and the other spouse does not consent to the terms of the divorce, such as property division or spousal support. It can also occur when the spouse denies that the couple is eligible for a divorce.

Where a divorce is contested, it will proceed through the family court process like any other case. If the parties agree to the divorce but disagree about corollary issues such as spousal support or custody of children, a court can ‘sever the divorce’. This means that the divorce can proceed immediately pending the resolution of the corollary issues. Given that it can take many years for some spouses to finalize property and support arrangements, severing the divorce can be practically much more expeditious.

However, there are only three reasons why a judge cannot grant a divorce alone (leaving support, property and other claims to separate orders that can be made later). Neither of those three reasons relates to whether both spouses want a divorce. Those three reasons are:

  1. Any children are not being adequately supported financially. If there are children involved, section 11(1) of the Divorce Act mandates that there be adequate provision for them in place before a divorce will be granted. What that means, in the light of the Child Support Guidelines, is that the support must be either in accordance with the Child Support Guidelines or must be more than under the Guidelines, although the arrangements can be different. No matter the grounds for divorce or the method used to get a divorce, there must be satisfactory child support arrangements in place before a judge will grant the divorce.
  2. The spouse requesting the divorce is not removing religious barriers to remarriage. All a divorce order means is that the spouses are legally able to re-marry. But, the law does not mean the spouses can re-marry in their religion. A judge can deny a divorce to someone who is effectively preventing his or her ex-spouse from remarrying by using his or her religion. Section 21.1 of the Divorce Act requires that a spouse who wants a divorce must file an affidavit saying that the spouse has removed any religious barrier to remarriage that is within that spouse’s control. If the other spouse files an affidavit saying that is not true, that blocks the divorce. Obviously, there would be trouble for a spouse who files a false affidavit for any purpose.
  3. At least one of the spouses must have lived in the jurisdiction for at least a year to get a divorce in Canada. People cannot just come to Canada for their divorce. However, if neither party has lived in the jurisdiction of the Court for at least one year, then the Court probably will not even accept the Divorce Application.

Judges can also refuse to grant a divorce if the judge believes there has been “collusion” or “connivance” by the spouses – essentially the spouses are working together to get a divorce improperly. However, these are not things a spouse could raise to block a divorce.

If a judge is satisfied that the grounds for divorce exist and adequate provision for any children has been made, they will grant a divorce judgment. Once thirty days have elapsed from the date of judgment, the spouses will be legally divorced.

While you do not need a family lawyer to apply for a divorce, it is always advisable that you speak with a good, experienced, family lawyer before proceeding. A family lawyer can help you arrange your affairs so that a divorce can be granted more expeditiously and avoid the many pitfalls and obstacles that can slow the process. Contact Certified Specialist in Family Law (and author of the book to the left), John Schuman, by emailing him, calling 416-446-4036, or using the contact form below. We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).

To learn even more about divorces, and how to get one, including what to do, what not to do, how to protect yourself and your kids, your options and what steps you need to take, get a copy of this easy-to-understand book on the basics of Ontario Family Law as a paperback, or as a $9.99 e-book for KindleKobo, or iPad/iPhone/Mac. That book will guide you throughout the separation and divorce process, giving you the information you need to know and tips to not just stay out of trouble but succeed on all legal issues – in or out of court. You can also use the search on the right to find lots more articles about marriage and divorce.

Many thousands of people get family law assistance from this website every day. If you have found this page useful, please share it on your social network using the buttons at the bottom of the page.

Under s.19(1) of the Act, each spouse has an equal right to possession of the home. That means that your spouse cannot unilaterally kick you out of the house, even if they are the sole owner. This extends to changing locks, removing belongings, etc. It also prohibits struggles like selling the house or increasing the mortgage to force the other married spouse out. A spouse is prohibited from employing any of these self-help measures; they can only do it by order of the Court. Under s.24, the Court has the power to deal with the property contained in the home, such as by making orders for the preservation of the property or the delivery of the property to a person.

If your spouse wants to evict you or prevent you from having possession of any matrimonial home, they will have to bring a motion for an order for exclusive possession of the matrimonial home under s.24(1) of the Act. The criteria for making these orders are contained in s.24(3) of the Act. An order for exclusive possession is an extraordinary remedy and is only granted in very clear cases. Judges do not like to kick a spouse out of their house unless circumstances compel it, such as where there is clear evidence of abuse or where it is in the best interests of the party’s child(ren) that the court makes such an order. Where the matrimonial home is a secondary property (a family can have more than one matrimonial home), such as a cottage, a judge may be less concerned about such an order ‘putting you out on the street’, your spouse would nonetheless have to convince the court that such an order is necessary.

For your husband to bring a motion for an order for exclusive possession, he will have to start a court proceeding. There are no legal, out-of-court means to force a spouse to give up possession of the matrimonial home (except for family arbitration where the arbitrator acts like a judge). You should listen to these podcasts (Part IIIIII) where I explain the family court process in Ontario and what to expect when litigating a family law issue. Watch the video on the family court process below. He may start a proceeding and then bring the motion on notice to you or, if she believes that circumstances are urgent, she may start a proceeding and bring the motion immediately without notice to you. If your spouse has contacted a family law lawyer, it is best that you do so as well, and sooner than later. A good family law lawyer will be able to explain your rights and obligations to you and how best to protect yourself through the end of your relationship.

As your spouse has illegally changed the locks, you can ask the Court for an order for possession of the house. In circumstances where one spouse is clearly denying the other spouse the right to possess the house, a judge may order that you have exclusive possession of the cottage, as there is no evidence that you (unlike him) would prevent him from possessing the house. You should speak to an experienced family law lawyer right away, as it is important to make these claims as they arise and not wait to go to court. 

If you are in a common-law relationship, read this page for information about your rights with respect to your family home.

To learn even more about your rights and obligations regarding the matrimonial home, you may want to get a copy of this easy-to-understand book on the basics of Ontario Family Law as a paperback, or as a $9.99 e-book for KindleKobo, or iPad/iPhone/Mac. You can also use the search on the right to find lots more articles about marriage and divorce.

If you are being threatened with being kicked out of your home, especially if those threats are accompanied by other threats or violence then you need to speak with a good, experienced, family lawyer immediately. A family lawyer will protect your rights and make sure you do not get into a bad situation that will be difficult and expensive to correct. Contact Certified Specialist in Family Law (and author of the book to the left), John Schuman, by emailing him, calling 416-446-5847, or using the contact form below. We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).

Many thousands of people get family law assistance from this website every day. If you have found this page useful, please share it on your social network using the buttons at the bottom of the page.

John Schuman Guide to the Basics of Ontario Family Law book cover

You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of parenting cases (parenting time and decision making), child support, spousal support, property division, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback. But to understand how the law works precisely in your situation, it is always best to speak to a good Family Law Lawyer.

To comment on this article, or to contact John Schuman, please use the form below.

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