Adam Black: Trying to circumvent the legal requirements for obtaining a divorce has lasting consequences
Published Oct 04, 2023 • 4 minute read
Couples who may attempt to circumvent the legal requirements for obtaining a divorce in Canada will face enduring consequences. Photo by Getty Images/iStockphoto In Canada, a divorce can be granted pursuant to the federal Divorce Act on the basis of a marriage breakdown. A breakdown is established on one of three grounds: separation for at least one year; adultery; or physical or mental cruelty. In practice, the most common ground is separation for at least one year.
To satisfy a judge that a couple has been separated for at least one year, one or both spouses must make a declaration to the court, usually in the form of a sworn affidavit, confirming their date of separation. But what happens if a couple wants a “quickie” divorce and falsely declares they have been separated for one year even though they have not? Justice Geoffrey B. Gomery of the Supreme Court of British Columbia encountered that issue during a case in July.
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The couple in question applied to the court for a divorce in late 2004 shortly after an argument. At the time, the couple was still living together. A divorce was granted in early 2005. In family court proceedings nearly 20 years later, Justice Gomery uncovered that the couple signed affidavits, under oath, wherein they declared they had been living separate and apart since Oct. 20, 2003. According to Justice Gomery, “this was a lie” made under oath to “subvert the law’s requirements and obtain a quick divorce.”
Despite the argument and the divorce, the couple continued their relationship until their actual separation in March 2017, twelve years after the divorce. At that time, the husband commenced court proceedings wherein both parties sought a division of property and the wife sought spousal support. It was the trial of those issues that was before Justice Gomery in July.
Justice Gomery began his judgment with a discussion about the 2005 divorce. According to the Judge, the “divorce order was obtained by fraud.” He found the couple “jointly colluded in a course of conduct to present a false state of affairs to the court. Had they presented the true state of affairs, the court would not have granted the order.”
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The divorce granted in 2005 significantly complicated the resolution of the couple’s claims arising from their separation in 2017. According to the judge, the divorce order had implications for the court’s assessment of how long they had been in a marriage-like relationship and would also affect the division of assets between the pair.
In advance of the trial, the wife took the position that the relationship “should be treated as continuous despite the divorce.” At the trial, the judge alerted the couple that he was considering whether the divorce order should be set aside. While neither party initially sought an order that the divorce order be set aside, the wife, in response to the judge’s warning, took the position that the divorce order should be voided, presumably on the basis of the fraudulent declarations made to the court in 2005.
Reluctantly, Justice Gomery agreed with the wife and voided the divorce order. “A divorce was not, in law, available to the parties at the time the order was made. The policy of the law is that a divorce should not be too easy to obtain,” the judge noted. “To permit the divorce order to stand in the face of the parties’ perjury in this case would undermine the scheme of the legislation and the public policy it implements.”
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The husband was ordered to pay the wife $282,450 on account of division of property and spousal support for the couple’s 15.5 year relationship, uninterrupted by the 2005 divorce. If the divorce had not been set aside, the result could have been very different.
The wife went on to ask the judge to grant a new divorce based on the couple’s separation in 2017. Justice Gomery refused to do so, noting that he was not overseeing a divorce proceeding and that they could reapply for divorce in the proceeding initiated in 2004. Until they do so, the couple remains married to one another.
While there is no doubt the couple has now been separated for at least one year, if they do attempt to reapply for divorce they will likely need to explain the false statements made under oath in 2005. It may be the case that the judge being asked to grant a divorce now will want to consider the section of the Criminal Code which makes it a crime to mislead justice. Pursuant to the code, perjury and fabrication of evidence are offences that can lead to imprisonment for up to 14 years.
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This case serves as a caution to couples who may attempt to circumvent the legal requirements for obtaining a divorce in Canada. Doing so can have enduring consequences.
Adam N. Black is a partner in the family law group at Torkin Manes LLP in Toronto.
ablack@torkinmanes.com
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