Can My Spouse Get a Divorce Before Following Our Separation Agreement?

signing  separation agreement

Ontario Family Law Podcast

3 - What is a divorce? How do I get one?

10 - Child Support - Who Pays and How Much?

24 - How to Have a Valid and Enforceable Separation Agreement

32 - How to Change a Support Order

After separation, many spouses want their “exes” to live up to their obligations before getting a divorce.  To understand why that matters, it is important to understand what “divorce" means (which if more fully explained in this podcast). But to summarize, all the “divorce” means is that a person can get remarried.  Everything else (child custody, child support, property division, etc.) are separate issues.  It is possible to resolve “everything else” by way of a separation agreement, but only a Family Court Judge can grant the divorce. 

So, many people do not want their spouse to get a divorce until they have paid support, followed a custody order, or divided the property.  In most cases, doing those things is not required to get a divorce.  But, there are some considerations where there is a legal, valid and enforceable separation agreement in place. 

Unless the separation agreement says otherwise, parties are able to include terms from their separation agreement in a Divorce Order.  (and spouses can always ask the Court and the Family Responsibility Office to enforce the support provisions of a separation agreement by filing the agreement and Form 26B with the Family Court.)  If your spouse has not fulfilled the terms of the agreement, there may be an advantage in converting your separation agreement into a Court Order.  Doing so means the agreement can be enforced as a court order (using the FRO, garnishments, seizure of property, contempt of court powers or other enforcement tools).

If your settlement is made into a Court Order, then you can definitely stop your spouse from doing anything before the Court.  Additionally,  the Courts in Ontario almost always take the position that a person who does not obey Court Orders should not be able to ask for Court Orders against someone else.  The basis for this is fairness: it is not fair if only one side of a dispute follows what a judge says.  In addition, Rule 1(8) of the Family Law Rules gives judges a lot of powers to refuse to even hear from someone who is not obeying court orders.  Those powers include dismissing the person’s case, or striking their pleading and allowing the case to proceed uncontested, or refusing to let the party in default take any further steps before the Court.

The exception to the above is where a judge feels that parenting arrangements must be changed in a child’s best interest or when child support should be adjusted to make sure the child is receiving the proper amount.  Judges put children first.

If you spouse is not deliberately beaching a court order, and things are progressing as contemplated by the agreement, even if they are not finished, then there are very few reasons on which a judge will refuse a divorce:

So, if your spouse wants a divorce, and a ground for divorce exists (usually being separated for more than one year) and none of the above barriers exist, then your spouse will get the divorce.  Of course, if your spouse is not paying appropriate child support, that may block the divorce and you should speak to a lawyer about challenging the divorce.

If the agreement specifically says that your spouse is not allowed to go back got court before taking some specific steps, that may block your spouse from taking any other steps before the Court.  The effect of the agreement may be to prevent your spouse from changing anything in the agreement, until he or she has completed all the tasks required by the agreement.

Guide to the Basics of Ontario Family Law - 4th edition cover

You can get a lot more information about Ontario Family Law issues, including how to enforce a separation agreement, the requirements for divorce, and a comprehensive explanation of 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


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However, to know for certain how the law applies to your daughter’s situation and to ensure she is doing the best thing for her (and any children), your daughter should speak to a Family Law Lawyer. Contact CertifiedSpecialist in Family Law (and author of the book to the left), John Schuman, by emailing him, calling 416-446-5869, 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). 

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