When spouses separate there are numerous issues to be resolved including property division, parenting time, spousal and child maintenance. Married spouses also want to be divorced.
It is possible in certain circumstances for spouses to obtain a divorce before their property is divided and before spousal maintenance is determined but all of the issues regarding the children do need to be resolved first. The reason for this is that pursuant to the Divorce Act of Canada any judge granting a divorce must first satisfy themselves that proper and adequate arrangements have been made for the children.
There is another reason not to apply for an early divorce before the division of property is determined which is contained in the Income Tax Act. If the spouses own a corporation, the shares or assets of the corporation can be divided between them without triggering capital gains tax but only if the division is done prior to a divorce.
There have been a few recent decisions where judges have refused to grant an early divorce if one of the spouses is refusing to provide adequate disclosure of their finances. In Plech v. Burwicz (2016 ONSC 875) the judge refused to grant an early divorce because the husband had failed to provide disclosure after repeated requests.
In Mullin v. Sherlock (2015 ONSC 7587) the judge refused to grant an early divorce because it would have changed the wife’s status as a “spouse” and disentitle her to medical and life insurance benefits.
These two decisions are rare however and usually a judge will grant an early divorce if the issues regarding the children have been resolved.
Deborah A. Todd