In Canada, regardless of the type of divorce, whether it is “at-fault” or “no-fault”, there is a possibility that after filing for divorce, the court says: “You two are not allowed to divorce, have a good day!”
In fact, under certain circumstances, the court will refuse to proceed with a divorce according to s.11 Divorce Act. What are these circumstances?
- The first is Collusion. Under s.11(1)(a) of the Divorce Act, if two people marry for some illegal purpose, as depicted in the 1990 movie “Green Card,” getting a divorce won’t be easy.
- The second is Connivance. Under s.11(1)(c), one spouse cannot condone the other’s wrongdoing and then use it as grounds for divorce to gain an advantage. For example, if a wife discovers her husband has an affair and does nothing to stop it or even encourages it, she cannot use his infidelity as a reason for divorce. Maddock v Maddock [1958]
- However, the court will grant divorce notwithstanding connivance if it is in public interests to grant divorce, as the Court is more likely to excuse passive acquiescence than active encouragement/procurement of offense.
- The third is Condonation, more aptly translated as “forgiveness”. Under s.11(3), if a couple reconciles during the divorce process and then falls out again, repeatedly, the court may end up saying: “Are you guys having fun here? You are not allowed to divorce, so go home and enjoy your day!”
- The last scenario concerns the care of children. Simply put, under s.11(1)(b), the court will only grant a divorce if it is convinced that reasonable arrangements have been made for the care of any minor children.
The court is extremely cautious when refusing a divorce based on the third reason mentioned above, as being too harsh could discourage couples from reconciling. The Divorce Act explicitly states that courts and lawyers have the duty to promote reconciliation over separation. Section 10 outlines several responsibilities of the court, including the need to adjourn proceedings at any stage if there is a possibility of reconciliation.
The Divorce Act and professional codes of conduct also impose duties on lawyers to encourage reconciliation. Notably, while lawyers typically have legal privilege and strict professional requirements, such as not negotiating a settlement with the opposing party without their client’s consent, s.7.7 of the Divorce Act allows lawyers to bind reconciliation agreements even without their client’s authority (so long as the other party didn’t know they were acting outside authority), and these agreements are still valid.
