Severing the Divorce
Typically, family law matters in litigation will include a claim for divorce, as well as a claim for issues arising from the separation such as parenting claims or support claims. Those sorts of claims are referred to as “corollary issues” and those claims can be made pursuant to the Divorce Act, in which case they will normally be dealt with by way of a final Divorce Order that includes terms dealing with those corollary issues.
Sometimes a party wishes to obtain a divorce before those corollary issues are dealt with on a final basis. When a party wants to obtain the divorce itself more quickly, even if the other issues are still part of the court matter, that party may request an order “severing” the divorce from the corollary issues. This means that the court can make an order that gives that party permission to obtain a Divorce Order even though some related issues such as support have yet to be finalized.
Where a divorce is severed from the corollary issues this can create a disadvantage for the other spouse. For example, the other spouse may still be covered by health insurance which might stop once a divorce is finalized.
The Family Law Rules permit a divorce claim to be severed from corollary issues if neither spouse will be disadvantaged, AND reasonable arrangements have been made for the support of any children of the marriage.
In the example of a spouse who is still reliant on health insurance provided by a legal but separated married spouse, the court might not agree to sever the divorce unless the party seeking the divorce can provide some alternative coverage, for example a private plan, or money for the cost of same. The court can refuse to grant a divorce whether or not the request is to sever it from the corollary relief if there are not reasonable child support arrangements in place, and all family law litigants need to be cognizant of their obligations in this regard. If the parties are having an argument about whether an older child is still entitled to support, or what amount of support should be paid, the court might refuse to sever the divorce, or grant a Divorce Order, until that issue gets resolved.
A litigant seeking this type of order may be looking for early closure, or be planning on remarrying soon, which is why they wish to expedite the legal divorce itself, even if there are other issues that have yet to be finalized.
Parties need to be aware that the divorce will not be granted in a vacuum and there need to be basic arrangements in place to ensure no disadvantage to either party, and to ensure that the children are provided for in line with the legislation and the Child Support Guidelines if a request is going to be made to sever the divorce from corollary issues. Likewise, parties should also be aware that it will often be the case that there is no prejudice to severing the divorce from corollary issues, and that a court will grant these orders where that is clearly the case.