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Severing the divorce from other issues

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  • Severing the divorce from other issues

    We have been separated for 2.5 years. It appears that ex is not a rush to settle issues and is disputing everything for the sake of it. I have a case conference tomorrow to discuss custody, financial affairs and divorce. What are the circumstances under which a judge can sever the divorce from other issues.

    Brief background:

    All financial affairs have been addressed in separation agreement - ex is asking for the agreement to be set aside

    Custody has been addressed in separation agreement plus there is a court order on that - ex is asking to set both aside.

    My position is that divorce should not be stayed because all other issues are already part of previous agreements and/court order.

    Thank you.

  • #2

    You could deal with the matter by way of motion to severe the corollary issues issues and seek the Divorce.

    See this case:

    On appeal from the judgment of Alison Harvison Young of the Superior Court of Justice dated February 22, 2005.

    E N D O R S E M E N T

    [1] The appellant appeals from the order of Justice Harvison Young dated February 22, 2005, made in divorce proceedings between the parties.

    [2] The appellant says she did not receive the notice of motion. However, it was sent by ordinary mail to her address for service recorded in the court file which remained her residence, though the appellant says she was not staying there at the time. The appellant did not persuade us that we should interfere with the motion judge’s finding that she was properly served.

    [3] However, we are satisfied that to the extent that the formal order does more than sever the divorce from the corollary issues, grant a divorce, and allow the respondent to amend his petition for divorce to include an order that the matrimonial home be sold, it must be set aside. In that regard, we note that, by letter dated February 24, 2005, the respondent’s solicitor served the amended petition upon the appellant asking for the relief in relation to the sale of the matrimonial home indicating that those issues remain to be decided.

    [4] The motion judge had jurisdiction to make the orders severing the divorce from the corollary issues, granting the divorce, and allowing the respondent to amend his petition for divorce. However, we are of the view that the corollary relief relating to the sale of the house should not have been granted until the petition had been amended and served upon the appellant.

    [5] Consequently, the appeal is allowed to the extent that paragraphs 4, 5, 6, 7, and 8 of the order below are set aside.

    [6] As both parties appeared in person, there will be no costs of the appeal.

    “J.I. Laskin J.A.”

    “Robert J. Sharpe J.A.”

    “R.G. Juriansz J.A.”


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