Separation

Daughters separation agreement states spouse cannot take this back to court until everything in agreement is fulfilled. Now spouse wants to get a divorce. Can he legally do this if separation agreement still is fulfilled?


Asked 4 months ago in Ontario
Categories: Family Law

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Benjamin O Mbaegbu

Answer by Benjamin O Mbaegbu

Not VerifiedOntario lawyer

Yes, he has a right to file for divorce.

Posted 4 months ago

Please note that this is for informational purposes only and does not constitute legal advice to you. Legal advice pertaining to your particular situation can only be provided by a lawyer who has met with you to obtain all pertinent background information necessary to give you a formal legal opinion. For formal legal advice, hire a lawyer (many give a free first consultation). Contact Benjamin O Mbaegbu, or search the Lawyer Directory.


John  P. Schuman, C.S.

Answer by John P. Schuman, C.S.

VerifiedOntario lawyer

The answer to this question is more complex than it appears on its face.

Unless the separation agreement says otherwise, parties are able to include terms from their separation agreement in a Court Order.  (and spouses can always ask the Court and the Family Responsibility Office to enforce the support provisions of a separation agreement by filing the agreement and Form 26B with the Family Court.)  If your daughter’s spouse has not fulfilled the terms of the agreement, there may be an advantage to her in converting her agreement to a Court Order so it can be enforced as a court order (using the FRO, garnishments, seizure of property of contempt of court powers or other enforcement tools.)  

If your daughter’s settlement is made into a Court Order, then she could definitely stop her ex from doing anything before the Court. Additionally,  the Courts in Ontario almost always take the position that a person who does not obey Court Orders should not be able to ask for Court Orders against someone else.  The basis for this is fairness.  Although Rule 1(8) of the Family Law Rules gives judges a lot of powers to refuse to hear someone who is not obeying court orders.  Those powers include dismissing the person’s case, or striking their pleading and allowing the case to proceed uncontested, or refusing to let the party in default take any further steps before the Court.

The exception to the above is where a judge feels that parenting arrangements must be changed in a child’s best interest or when child support should be adjusted to make sure the child is receiving the proper amount.  Judges put children first.

If you daughter’s ex is not deliberately beaching a court order, and things are progressing as contemplated by the agreement, even if they are not finished, then there are very few reasons on which a judge will refused a divorce:

The most obvious is that the person asking for a divorce does not have grounds for asking for a divorce.  Those are usually not hard to meet.  There are some other reasons why a judge can refuse to grant a divorce:

So, if your daughter’s ex wants a divorce, and a ground for divorce exists (usually being separated for more than one year) and none of the above barriers exist, then your daughter’s spouse will get the divorce.  Of course, if the ex is not paying appropriate child support, that may block the divorce and your daughter should speak to a lawyer about challenging the divorce.

The separation agreement should block the ex from taking any other steps before the Court, including trying to change anything in the agreement, until he or she has completed all the tasks required by the agreement.

You can get a lot more information about Ontario Family Law issues, including how to enforce a separation agreement, the requirements for divorce, and a comprehensive explanation of child support, spousal support, property division, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback.

 However, to know for certain how the law applies to your daughter’s situation and to ensure she is doing the best thing for her (and any children), your daughter should speak to a Family Law Lawyer.

Posted 4 months ago

John Schuman is a Certified Specialist in Family Law.  He is the partner managing the Family Law Group at Devry Smith Frank LLP, a full service law firm located near Eglinton and the Don Valley Parkway in Toronto. Learn more about John! Call him at 416-446-5080 or 416-446-5847 or email john.schuman@devrylaw.ca Listen to the Ontario Family Law Podcast!

Please note that this is for informational purposes only and does not constitute legal advice to you. Legal advice pertaining to your particular situation can only be provided by a lawyer who has met with you to obtain all pertinent background information necessary to give you a formal legal opinion. For formal legal advice, hire a lawyer (many give a free first consultation). Contact John P. Schuman, C.S., or search the Lawyer Directory.

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