The Process and Reasons for Resisting Severance of Divorce

Introduction

Family law can often be a complex field, especially when it comes to navigating the process of divorce. One aspect that can prove particularly challenging is understanding when and how to resist a severance of divorce.

Requirements for Severance

According to rule 12(6) of the Family Law Rules, the court can order the splitting of a divorce from other issues in a case under two conditions: neither spouse is legally disadvantaged by the order, and reasonable arrangements have been made for the support of any children of the marriage.

The first requirement is particularly important to note, as it pertains to legal disadvantages, not merely tactical ones.

The second requirement calls for the moving party to be paying child support in accordance with the Federal Child Support Guidelines. If these requirements are not met, the other spouse has grounds to resist the motion.

Reasons to Resist Severance

There are several reasons why spouses may wish to oppose a severance motion. These include the potential loss of eligibility for healthcare insurance under the other spouse's employee benefits plan and the loss of rights with respect to the matrimonial home under Part II of the Family Law Act.

This loss of rights could mean an end to the other spouse's possessory rights to the home, the ability of the moving party to sell or mortgage the home without the other spouse's consent, and more.

Additionally, a divorce could result in a loss of survivorship rights, such as the Canada Pension Plan survivor pension and inheritance rights.

Evidence Required When Resisting Severance

When opposing a severance motion, it's crucial to provide suitable evidence supporting the resistance. For instance, if a spouse would lose health insurance benefits upon divorce, evidence such as the relevant insurance policy terms or a letter from the insurer or employer must be provided. In the case of child support arrangements, the evidence must come directly from the party involved. If there is a possibility of legal disadvantage in another jurisdiction due to divorce, a legal opinion from that jurisdiction can be useful.

Conclusion

Resisting severance of divorce is a complex process and understanding the requirements, reasons for resistance, and necessary evidence is crucial. It's always advisable to consult with a family law professional when navigating these issues, to ensure your rights and interests are protected.

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