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 the divorce. Those two 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 spouse has removed any religious barrier to remarriage that are 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 has elapsed from the date of judgment, the spouses will be legally divorced.

John P. Schuman
Devry Smith Frank LLP

John is a Certified Specialist in Family Law. To learn more about John please click http://divorceangels.ca/vendor/john-p-schuman/?r=7699

 

4 Responses to “Could a judge ever refuse my divorce?”

  1. Christina

    A guy I’ve been dating has been trying to get a divorce for ten years . Has been in front of a judge 4 times all women judge’s he keeps getting denied. And she had an affair on him twice. But how can the judges denied him everytime, he raised and paid child support until they completed college which he also paid for. The kids are married on there own how can he keep having to go through this? What are his other options?

    Reply
  2. Anonymous

    hi my name is danny the judge refuses to give me a divorce because I did not have legal representation we agreed on division of assests and he still refuses he says I need a lawyer because I agreed to give my wife full property and handed over 100% of my pension what gives him the right to refuse?

    Reply
  3. John adams

    can my ex get a divorce without my knowledge? we’ve been apart more than a year and live in separate towns. also we signed a separation agreement in the beginning with no witnesses or lawyers advice , does it still stand? thanks

    Reply

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