Best Vancouver BC Divorce Lawyer Tips help our BC and Calgary family law clients successfully move forward after separation. In today’s Best Vancouver BC Divorce Lawyer Tips, Michael Lam, of our downtown Vancouver office explains how you can get a divorce before the rest of the family law issues are dealt with. Contact us to meet to discuss this important area of divorce and family law.
In most family law cases, the application for a divorce order is the final step taken once all other issues or what is known as the “corollary relief” in the family law matter have been resolved. However, in some cases, it is possible for the court to grant a divorce prior to the corollary relief being resolved in full provided that the requirements for a divorce order under s.11 of the Divorce Act have been satisfied, namely: (1) that there is no collusion in the application, (2) where adultery or physical or mental cruelty are asserted as grounds, there is no condonation or connivance on the part of the applicant spouse, and (3) the court is satisfied that reasonable arrangements have been made for the support of the children of the marriage.
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The court retains a discretion to grant a divorce in advance of a resolution of the corollary relief. Mike Lam’s Best Vancouver BC Divorce Lawyer Tips explain the law on this topic. The leading case regarding how courts are to exercise that discretion is Johnson v. Johnson, 1991 CanLII 1553 (BCCA), where the court cited two propositions at paragraphs 7 and 8:
7 There is another passage in Daley v. Daley which, in my opinion, is apt to the circumstances here. It is this:
The granting of a divorce, properly before the Court, should not be withheld as a means by the Court to force either party to enter into a settlement of other issues in the proceedings. The Court, at this stage of the proceedings, in any event, is not in a position to decide whether a party’s refusal or tardiness to settle a claim results solely from his or her intransigence, from an overabundance of caution, or from some valid reason for so acting.
8 In my respectful opinion, Madam Justice Huddart properly disposed of the allegations of injustice made to her and exercised her discretion judicially and appropriately at the end of her reasons when she said:
The real issue is whether or not it is unjust to grant a divorce at this time. The parties do not have any right to have all the issues tried together any more. That is the effect, I believe, of R. 18A. In my view, there is no injustice here to deciding the issues as opposed to granting the divorce, and any injustice that might arise from the granting of the divorce itself is purely monetary and can be recompensed since it is obviously Mr. Johnson’s decision to have the divorce order made at this time. At the hearing of the actions, should there, in fact, be those detrimental consequences which Mrs. Johnson says there will be, there is no question but that the parties have plenty of money to compensate each other for any detriment that might occur to either one of them as a result of whatever they do in these proceedings.
Notwithstanding this discretion, one of the Best Vancouver BC Divorce Lawyer Tips you need to know is that the courts may be hesitant to grant a divorce judgment before all matters are resolved. This is particularly so if those matters remain contentious and if those matters deal with children and child support. In light of this, the court is to assess whether it would be just to grant a divorce early. Accordingly, the court is to balance the prejudice that would be occasioned by the parties if a divorce is to be granted before the parties’ family law matters are resolved in full.
Some examples of successful and unsuccessful cases are set out below.
Best Vancouver BC Divorce Lawyer Tips – When Will A Divorce Be Severed and Granted Before Trial?
Examples where an order to sever the divorce was refused
- In Hill v. Hill,  B.C.J. No. 1784, the court declined to order a divorce finding that the wife would be prejudiced by the loss of her status as a spouse.
- In Darbyshire-Joseph v. Darbyshire-Joseph, 1998 B.C.J. No. 2765, the court declined to order a divorce as because the wife had lost her Indian status prior to her marriage, she would not be able to have her Indian status reinstated if the divorce order was granted and the wife accordingly ceased to be a member of the Squamish Nations
- In Kirk v. Kirk et al, 2007 BCSC 67, the court declined to grant a divorce finding that the risk of significant prejudice to the wife on various legal and financial concerns outweighed the prejudice occasioned by a delay in making the divorce order with trial to commence in 4 months.
Examples where an order to sever the divorce was granted
- In McLeod v. McLeod, 2001 BCSC 843, the wife opposed the granting of an order for divorce alleging that there could be adverse tax consequences if the property division was ordered after the divorce had been granted. The court granted the divorce on the basis that there was no evidence that the divorce should be delayed because of tax planning considerations and that the needs of the children would be met by the interim support order already made.
- In Abijero v. Quismundo, 2012 BCSC 1394, the court granted an order for divorce finding that the wife’s objectives in opposing the application were in part to leverage the husband into a final resolution on the corollary matters and that there was no suggestion of prejudice arising from her loss of status as a wife.
The Interplay with foreign divorce proceedings
Another one of our Best Vancouver BC Divorce Lawyer Tips involves foreign proceedings. One issue that frequently arises in applications to sever a divorce is the existence of family law proceedings in another jurisdiction and the potential impact a divorce order could have on those proceedings.
These cases are based on an assessment of whether if a divorce order is made, there could be prejudice or detrimental consequences to the foreign divorce proceedings. In these cases, the court will require evidence of the alleged prejudice or risk that would be occasioned by the granting of the divorce order. This evidence must be tendered to the court in the proper form as expert legal opinion or in a proper affidavit.
The following Best Vancouver BC Divorce Lawyer Tips cases highlight how the court assesses prejudice in light of foreign divorce proceedings:
- In Mann v. Mann, 2013 BCSC 1726, the court granted a divorce rejecting the wife’s arguments objecting to divorce because of ongoing criminal proceedings in India dealing with the dowry and jewelry. The court found there was insufficient evidence of those criminal proceedings and that there was no evidence or arguments made about actual prejudice the wife might occasion.
- Similarly, in Gill v. Gill, 2019 BCSC 1784, the court found the wife’s expert evidence was unsatisfactory and not in the proper form of expert legal opinion and could not draw any conclusions about the law of India and its effect on the case. The court, therefore, found it was able to grant an order for divorce as sought by the husband.
- In Boyal v. Boyal, 2014 BCSC 2261, the court again agreed to grant a divorce finding that the wife’s expert opinion on Indian family law was not in the proper form and did not actually have an expert opinion on it.
- However, in Bhullar v. Bhullar, 1997 CanLII 894 (BCSC), the court declined to grant a divorce in Canada. The court based its decision on the expert opinion of an Indian barrister who wrote two formal expert opinion letters emphasizing that prejudice could be occasioned. The prejudice, in this case, was that though the grant of a Canadian divorce would not exactly nullify the claims in India, the Indian court could be more reluctant to grant the relief sought in the face of a Canadian divorce order.
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A common pattern that comes across these cases is the importance of showing actual prejudice. Where there is an intersection with a foreign divorce proceeding, the party opposing the divorce must ensure that their evidence of prejudice in the foreign proceedings is in the proper form of an expert opinion acceptable to the court.