Splitting Divorce From Other Issues – Lessons From an Urgent Case

By Dickson Appell
Splitting Divorce From Other Issues – Lessons From an Urgent Case

Rule 12 of the Family Law Rules provides that the question of divorce can be separated or “severed” from the other issues in a case so long as severance does not disadvantage either spouse and reasonable arrangements have been made with respect to child support. In Labelle v. MacMillan, 2022 ONSC 5492, an urgent divorce order was made on the basis that doing so would better support the children than if the divorce was not granted quickly.

The couple in this case separated in 2020 and attended mediation later that year which resulted in a Separation Agreement. The husband was diagnosed with ALS in 2021 and stopped paying child support a few months after the diagnosis. In November 2021, he filed for divorce; his wife responded with claims for child support, security for child support, and for an order designating her as irrevocable benefit of the Supplementary Death Benefit that was available under the husband’s pension. The husband then brought a motion to sever the divorce from the relief sought by the wife, and to grant the divorce immediately, seeking an urgent divorce order.

As the wife had released all rights to spousal support in the Separation Agreement and that agreement dealt with the property issues between the parties, the only issue on the motion was whether there were reasonable arrangements for support of the children. The husband introduced actuarial evidence that, if the divorce was not granted, the survivor benefit under his pension would go to the wife, with each child receiving 20% of that amount until a designated age. If the divorce was granted, the wife would not receive any survivor benefit, but each child would receive 40% of the amount available.

On the basis of this evidence and evidence that the husband’s health was rapidly deteriorating, the court granted the motion to sever the divorce from the other issues, and for the divorce to be granted immediately, without a waiting period.

The Court also addressed the issue of child support, which the husband had stopped paying in late 2020. The husband had also done some estate planning that was contrary to the terms of the Separation Agreement, notably removing the wife as designated beneficiary of a supplementary death benefit, and preparing a will naming his sister as trustee for the children’s inheritance (contrary to the Separation Agreement, which provided that the wife was to be the children’s guardian of property). Given that the husband was expected to die shortly after the motion was heard, the Court granted a temporary order requiring the husband to designate the wife as beneficiary of the supplementary death benefit, and the wife to hold those funds in trust pending a final determination as to any child support outstanding following the husband’s death.

While the facts of Labelle v. MacMillan are unique, the decision provides guidance as to the evidence that could be relevant on a motion to sever the divorce from other issues. It is also a good reminder that issues arising from acrimony between the parties are best set aside, if possible. Both the husband and wife had sought relief that the Court determined was not appropriate. The wife had asked that any new spouse revoke the right to the survivor’s benefit under the husband’s pension, and the husband sought punitive damages. Both issues were dismissed, with the Court expressing doubt that it could make an order requiring a third party (potential future spouse) to surrender any rights, and noting that the request for punitive damages was “overreaching and inappropriate”.