When a couple decides to divorce, the general rule is that a divorce will be granted after a couple has been separated for one year. While there are often a number of issues to be resolved in relation to the divorce, such as spousal support and the division of assets, courts will sometimes permit the parties to sever the divorce from these corollary issues. This means the court will allow the divorce to proceed, leaving the related issues to be resolved at a later date.
However, courts are not obligated to grant a request to sever a divorce, particularly when it could lead to an unfair result, as demonstrated in a recent case in which the husband was repeatedly denied a divorce pending full financial disclosure.
The parties had married in 2014 and separated four years later. They had no children. Three months prior to the separation, the parties entered into a post-nuptial agreement (at the husband’s insistence) calling for the equal division of shared property, with certain assets carved out for each spouse. Specifically, two businesses were allocated to the husband while a pension and other financial interests were allocated to the wife. The agreement contained no comprehensive list of assets or other financial disclosure. Notably, the wife did not seek independent legal advice prior to signing.
In October 2018, the husband filed a claim for divorce and spousal support. The wife filed a counterclaim, seeking spousal support and the equalization of net family property. The husband was asked to answer a total of 55 undertakings, which required him to provide financial and other information necessary to determine the financial matters. The husband failed to answer a number of the undertakings, and the hearing set for the spousal support claim could not proceed as a result. In March 2020, a hearing took place to determine the enforceability of the post-nuptial agreement. It was found to be enforceable, and the wife appealed the decision. The Court of Appeal found that the appeal had merit, and it set to decide the matter of the agreement’s enforceability in due course.
In the interim, the husband became engaged to be married to another person. In the case at hand, he requested an order to sever the divorce from the other outstanding issues still to be determined. He had initially scheduled his second wedding to take place in September 2020 but had to postpone because he was still legally married to his first wife. In order to proceed with his new marriage, the husband sought to sever the divorce from the remaining financial issues. In total, the husband had brought four severance applications, with the case at hand being the fourth. At the time of the most recent application, the husband had a wedding venue booked for his second marriage, set to take place just ten days later.
The wife asked that the application for severance be dismissed, pointing out that the husband’s repeated attempts to re-litigate the same issue amounted to an abuse of process and vexatious litigation.
In reviewing the matter, the judge noted that 15 undertakings appeared to remain outstanding, many of which were pertinent to the wife’s claim for spousal support. Further, there had been no change in circumstance since the previous hearing in which the husband’s application for severance was denied. The court agreed with concerns expressed by the previous judge that allowing the severance would eliminate any incentive for the husband to proceed with the necessary steps to determine the claims for support and property division.
Given that the husband had failed to comply with the disclosure requirements necessary to move ahead with the financial issues related to the divorce, the court once again dismissed his application for severance. In assessing costs, the court had the following to say:
I am satisfied that Mr. Hicks has engaged in litigation misconduct. This was Mr. Hicks’ fourth unsuccessful attempt to seek a severance of the divorce from the corollary relief. His application was frivolous, patently indefensible, and an abuse of the Court’s process. He has wasted judicial resources by essentially bringing three applications in a very short time frame, seeking the same relief. His actions were particularly inappropriate given the challenges to court operations posed by the COVID-19 pandemic and the scarcity of judicial resources at this time.
Given the husband’s conduct, the court assessed costs against him in the amount of nearly $7,000.
At Mincher Koeman, our family law lawyers bring unique experience and organizational skills to assist clients facing the financial dishonesty of a former spouse. Our goal is to quickly identify, locate, and value assets that will affect the division of property, or the determination of support, to ensure fairness in every case for our clients. Please contact our office to make an appointment to discuss your matter with one of our lawyers today by calling us at 403-910-3000 or reach out to us online.
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