There are certain certain divorce order barriers to potentially overcome when applying for a divorce order in Toronto, not to mention the confusing divorce application forms. There are potential barriers or bars to obtaining a divorce order if certain conditions exist. These potential bars or barriers to divorce include collusion, connivance, condonation, and the absence of an agreement for or court order for child support.
The Divorce Act stipulates that in a divorce proceeding it is the duty of the Court to satisfy itself that there has been no collusion regarding the application for divorce and to dismiss it must dismiss the application should collusion be found. Collusion really means that that the parties have in some way lied or mislead the court – it invalidates a divorce application regardless of whether sough on the basis of adultery, or cruelty. There may be an agreement between the parties to subvert the administration of justice such as an agreement to fabricate evidence or deceive the Court. The burden of proof lies with the applicant for divorce to prove that there was no collusion should a Court suspect it, and denial of this does not discharge their burden of proof (Singh v. Singh)
Another bar to divorce is connivance. This is more provisional, than an absolute bar to divorce where a breakdown for the marriage is sought to be proven by way of adultery, however this does not act as a bar to no fault divorces i.e one year separation. If a person seeking a divorce actively encouraged an offence complained of, or allowed the offence to occur so they may use it as an excuse to remove themselves from a marriage. A key case for this bar to divorce is Maddock v. Maddock. In this case, one party actively encouraged their partner to commit adultery and made no efforts to prevent it.
An additional bar to divorce would be condonation. This occurs when the party seeking the divorce forgives an offence and continues or resumes matrimonial cohabitation with the other party. This is also more of a provisional rather than absolute bar to divorce as connivance.
Finally, in s. 11(1)(b) of the Divorce Act, the Court must be satisfied that reasonable arrangements have been made for the support of any child(ren) of the marriage. If these arrangements have not been made, the Court will likely stay the grating of divorce until support for the children has been arranged.
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Written by: Christopher Rio Mortel , Associate Lawyer at Separy Law PC.
