In family law divorce proceedings obtaining the “divorce” itself is usually not overly contentious. Instead, a range of other issues that arise due to a divorce will demand consideration and sometimes result in a dispute between the parties. These disputes can include child support, parenting, equalization of family property, and spousal support, and collectively are referred to as corollary issues. In some instances, should a matter proceed to court, a party may seek an order from the court to sever the divorce from the corollary relief. What this essentially means is that they will be asking the court to allow the divorce to proceed before other issues (such as support) are dealt with. For some spouses, this can be an important way to move on with their lives if the legal proceedings dealing with issues such as support or property division are expected to be complex or lengthy.

Severing a Divorce From Other Issues

The Family Law Rules enable a divorce claim to be severed from corollary issues. Rule 12(6) states that the court may make an order splitting a divorce from the other issues in a case if:

1. Neither spouse will be disadvantaged by the order; and
2. Reasonable arrangements have been made for the support of any children of the marriage.

The type of disadvantage the rule refers to is a legal disadvantage that the responding party might suffer if severance was granted. In Al-Saati v. Fahmi, it was found that the disadvantage must mean more than simply allowing  the divorce to be “withheld or delayed as a form of leverage for other issues that can be pursued separately.” The onus lies with the applicant to establish that the responding party would not face any prejudice by the severance. Additionally, the court exercises discretion in granting the order. If the two conditions in 12(6) are met, the court “may” make an order, but it is not compelled to. Even where there is no prejudice, the court can refuse to sever a divorce where it a request is made too early in the litigation process (including before a case conference which is typically the first court appearance before a Judge).

Deprivation of Medical Benefits Disadvantages Other Spouse

In Zantingh v. Zantingh, the husband sought an order severing the divorce from corollary issues. The wife opposed the motion noting that the husband failed to make full financial disclosure and also argued that he was in arrears of spousal support, had failed to comply with court orders, had no specific plans to remarry, and had not met the onus of establishing that she would not be prejudiced by the severance of divorce. The court cited Shawyer v. Shawyer, which held that severance could be denied on the grounds of prejudice to the other spouse where the order could deprive them of medical benefits. Importantly, the wife sought to be maintained as a beneficiary of any health or medical benefits available to the husband. She alleged that she had significant health issues citing a disability pension she received.

The husband pointed to the fact that he had opted out of the company health plan in 2012 and maintained that he had not had family medical coverage since. He used this to claim that the wife could not be deprived of health benefits by the requested severance order because she did not currently enjoy any benefits and had not had them for several years. However, the documentation provided by the husband showed the husband in receipt of wages and benefits, but what the benefits comprised of was not disclosed. Conversely, the wife alleged that since separation, she had foregone treatments and medication that she had access to while on the husband’s benefits plan. She stopped one medication altogether because of its cost. Though she obtained the Ontario Trillium Benefit plan, it provided only partial coverage, and some treatments were not covered at all.

The Judge noted the parties had been separated for at least six years, and the benefits had not been addressed, prompting Justice Raikes to question whether this amounted to a significant issue for which the wife would be prejudiced if the order was made. Ultimately the judge could not say with any certainty that she would be prejudiced. The husband’s mere assertion that he had no coverage was insufficient where independent proof could have been provided. Further, the judge remarked that granting the order to sever the divorce from the corollary relief would signal that the husband’s conduct did not matter. This prompted Justice Raikes to decline to sever the divorce issue.

Possibility of Future Prejudice Enough to Deny Severance

In some circumstances, courts have held that the possibility of future prejudice is sufficient to deny severance. In Shawyer v. Shawyer, the husband sought severance of the divorce from the corollary issues, agreeing if the divorce was granted to keep the wife covered under his plan until trial. Further, he provided a letter from the plan administrator confirming that the wife would remain an eligible spouse regardless of marital status until replaced at a future date. Despite this, Justice Mitrow decided the letter was insufficient to confirm the wife would remain eligible for coverage, especially if he remarried. This applied even if the wife was completely healthy, as the loss of medical coverage would be prejudicial, as one cannot predict when an individual might require medical treatment.

Judges will exercise their discretion in granting severance of a divorce, with some rejecting calls to sever claims for divorce, finding that it is preferable that all matters proceed together. Further, an Alberta decision looking at the governing principles found that courts across Canada have been consistent that “severance may be granted when it is fair in the circumstances to do so”.

Contact the Divorce Lawyers at Boulby Weinberg LLP for Assistance with Divorce Severance

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