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Restrictions to Divorce

Published: October 17, 2013

Last Updated: September 12, 2025

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Table of Contents

Restrictions to Divorce

 The Divorce Act provides four situations in which someone seeking a divorce will be prohibited from doing so. Those four circumstances exist where there is collusion, connivance, condonation, or where there is an absence of reasonable arrangements for child support.

Collusion

Collusion exists where there is an agreement or conspiracy to subvert the administration of justice. In layman terms, collusion exists where there is fraud; for instance where the parties agree to fabricate or suppress evidence in an attempt to deceive the court.

An agreement to marry for immigration or citizenship benefits could be considered collusion, although it is not always deemed such. If the parties agreed to marry solely for such benefits, never intended to cohabitate and ultimately went separate ways after the marriage, there could be and inference of collusion. However, if it is obvious that one party was not aware of the other party’s intention to marry solely for citizenship benefits, collusion will most likely not be found.

Once the court decides that an inference of collusion exists, the burden shifts on the applicant for divorce to prove otherwise and negate the inference of collusion.

Where collusion exists, it acts as an absolute bar to divorce. This means that the court will not grant the divorce regardless of the circumstances or the basis for seeking the divorce

Connivance and Condonation

Unlike collusion, connivance and condonation are not absolute bars to divorce. If the court finds either in existence it will merely constitute a provisional bar to divorce if the grounds for divorce are a spouses’ adultery or cruelty.  This provisional bar means that the court may still grant the divorce if it appears that the public interest would be better served by doing so.  However, if the divorce is being sought on the basis that there has been spousal separation for on year or longer, the divorce will be granted despite a finding of connivance or condonation.

Connivance arises where the party seeking the divorce either encouraged or promoted the other party to engage in activities that now function as the grounds for divorce. A classic example of connivance is where a spouse either encourages adultery, or fails to prevent adultery despite knowledge of it, and then seeks a divorce on grounds of adultery.

Condonation, on the other hand, exists where the party seeking the divorce is aware of adultery, accepts the adulterous spouse’s apology, the parties resume marital cohabitation, and the non-cheating spouse eventually seeks a divorce on grounds of adultery. Courts are less inclined to prevent a party from obtaining a divorce on grounds of connivance as doing so may dissuade couples to make an attempt to reconcile.

Reasonable Child Support Arrangements

The final basis for preventing a divorce is if the parties have failed to make reasonable arrangements for the support of any child born of the marriage. To make a determination regarding whether the purported child support arrangements are reasonable, the court will consult the Federal Child Support Guidelines.

Reasonableness is determined after weighing the factors relevant in each individual case – a reasonable amount for child support will be different for a low-income couple than it will be for couples with greater wealth. The court will look at the income of the parties, as well as other factors including whether a party has intentionally taken a lower paying job or is intentionally unemployed to determine if the child support arrangement is reasonable.

If the court finds that there is no child support arrangement, or that the purported arrangement is not reasonable, the court will not grant the divorce. After the application is denied the parties must agree on a reasonable amount for child support before the court will grant the divorce.

Written by Lisa Gelman

Senior Lawyer

Senior Lawyer Lisa Gelman has over 25 years of family law experience and founded Gelman & Associates to provide strategic legal counsel in family law matters concerning divorce, parenting, separation, and more.

Frequently Asked Questions - divorce & separation

If you or your spouse are not in Canada, you can not get a divorce. However, you can end your marriage under the Civil Marriage Act. You can only end your marriage in Canada and not another country because your marriage is only valid in Canada.

Yes, you can date while separated in Canada. However, there is a legal implication to that. If the timing of your new relationship comes into question during your divorce, your relationship may be considered as an affair or adultery.

Yes. Our legal services are available in person, online, and over the phone. In addition, although our main office is located in Toronto, we have over 8 additional satellite offices located throughout central, southern, western, and eastern Ontario to serve family law clients across the province.

If you are litigating your matter, social media posts made by your spouse or partner may be relevant, especially if they contradict what your spouse is claiming in his or her pleadings.

For example, if a spouse is claiming financial hardship, a Facebook post that shows that spouse going on an expensive trip or posing with an expensive car can undermine such claim and potentially affect that party’s credibility in court if presented as evidence on a motion or at trial.

Further to photograph-based posts, statements that are made on social media by one party can be relevant if said posts (i) are related to the litigation, to issues of parenting and/or (b) contradict statements that were made by the party in his or her pleadings. For example, if a party is attempting to establish that he or she is an appropriate custodial parent, then recent social media posts about extensive partying and drug use made by that party may be relevant in court, as they may speak to that party’s fitness when it comes to appropriate supervision of a child in his or her care.

Yes, you can separate from your spouse. Separation does not have to lead to divorce. However, if you plan to remarry, you must file for divorce after one year of separation. Also, you may want to consider that if you just leave, your spouse may file for spousal support or child support.

It is advised however that before leaving, you try to have a separation agreement with your spouse.

Divorce can be a difficult decision to make, especially if you’re unsure if your partner will sign the petition. However, a divorce does not require your partner’s consent. Although it may be a long process if your partner doesn’t comply, they will not be able to stop you indefinitely.

The only ground for a divorce in Canada’s Divorce Act is marriage breakdown. This could include spousal infidelity, although infidelity alone could be difficult and emotionally taxing to prove in court.

You are not legally required to retain a lawyer to apply for divorce. However, a divorce application may involve important questions about parenting, support, property and procedural requirements. Independent legal advice can help you understand how a proposed agreement or court application may affect you.

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