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An Ontario court recently ruled on a motion filed by a wife who wanted to sever her claim for divorce from her claims for collateral remedies. The husband in question opposed the motion, arguing that he would no longer receive medical benefits from the wife’s insurer once they were divorced and wanting all outstanding issues between the parties to be addressed at the same time.
The parties began living together in 1998. They were married three years later and had one child (a son born in 2010). The parties ultimately separated in 2015. They live separate and apart but share parenting of their son on a 50/50 basis.
In June 2016, the wife filed for divorce, custody of the son, equalization of net family property, sale of family property, and costs.
The parties signed a Separation Agreement settling all outstanding financial issues between them in July 2017. The Agreement released both parties from their spousal support obligations, but provided that:
6.1 Tara and George will maintain their respective medical, extended health and dental coverage through her employment for George and Mitchell for as long as it is available to her for (their benefit)…
11.6 On Execution of this Agreement, Tara may move to obtain a divorce on an uncontested basis. Either George will withdraw his Answer or Tara will make a motion to have the divorce severed from the corollary issues. This paragraph may be relied upon if Tara needs to bring such a motion. The divorce will proceed on an uncontested basis.
Following the execution of the agreement, the only outstanding issues between the parties were the divorce and parenting matters.
The parties attended a Case Conference in December 2017 where they agreed that they would settle the remaining parenting issues through counselling and mediation. The wife requested an order severing her divorce claim, but the husband opposed the request arguing that, once they were divorced, he would no longer be eligible for medical coverage under the wife’s group benefits plan at work.
The parties were ordered to exchange information about how a divorce would affect the husband’s coverage under the wife’s insurance benefits, and what costs the husband would incur if he had to obtain comparable coverage for himself.
Both the husband and the wife are employed, part-time, with the same employer and have health benefits for themselves and their son. However, since the wife earns more the value of her benefits coverage is greater than the value of the husband’s benefits coverage and cover medical, dental and travel benefits for the spouses and medical and travel benefits for the son. The husband’s benefits cover some of the son’s dental costs.
The wife’s lawyer provided information that once the parties were divorced, the husband would no longer be covered under the wife’s benefits. The lawyer also notified the husband that the wife was prepared to maintain coverage for the won on her benefits, and that the husband would therefore only need to find coverage for himself. The lawyer requested information about the costs of such coverage.
The husband failed to provide the requested information. Instead, he wrote an email to the wife pointing out that, per the terms of the Separation Agreement, she was required to maintain his coverage for as long as she herself had coverage. He also noted that he was in the midst of looking for a new job and might not have coverage for the first 3-6 months of new employment.
The wife filed her motion in January 2018 requesting severance of her divorce claim, and costs.
Rule 12(6) of the Family Law Rules states that splitting a divorce from other issues can be ordered if:
- Neither spouse will be disadvantaged by the order; and
- Reasonable arrangements have been made for the support of any children of the marriage.
“Disadvantaged” was explored in an earlier decision in which a judge noted:
 In my view, the word “disadvantaged”, as used in rule 12(6)(a), must mean legal disadvantage that the responding party may suffer if severance is granted. It must mean more than simply allowing the divorce to be withheld or delayed as a form of leverage for other issues that can be pursued separately.
When a court makes a decision about severance, it must specify the particular legal disadvantage that the other party would suffer if the divorce was severed.
In another earlier decision, the court granted a wife leave to appeal the severance of her divorce as she would be disentitled to spousal benefits, noting:
The appellant wife is in limbo. She has no spousal benefits and if the husband dies, she will have nothing by way of survivor benefits. She has been denied the interim award she sought and is appealing. The trial of her issue as to corollary relief is yet to be held.
On the subsequent appeal, the Court of Appeal noted that summary judgment for divorce should not be granted where it would result in the other spouse losing benefits such as health insurance coverage prior to the determination of the corollary relief issues.
In a previous decision, the court refused leave to appeal from the motion’s judge’s refusal to sever the husband’s claim for divorce. The motions judge gave reasons, with specific reference to Rule 12(6) and identified the particular legal disadvantage that would befall the wife if the severance was granted. Specifically, her entitlement to a share of the husband’s estate would terminate. In that case, the court noted that the judge had placed no weight on the impact that a divorce might have on the wife’s coverage under the husband’s insurance policies and noted that this is a fact-specific exercise:
The weight that the court, in the exercise of its discretion under Rule 12(6), gives to the loss of insurance coverage as a potential disadvantage that the other spouse may suffer as a result of the early severing of the claim for divorce depends on the evidence in the particular case.
The court noted that, in the case at hand, since the husband had waived his claim to spousal support in the Separation Agreement, the only collateral issue that remained outstanding was the husband’s claim for child support. The court went on to say that severance of the divorce would not cause a legal disadvantage to the husband with respect to that claim because the wife had consented to an order that required her to maintain medical and dental coverage for the son and to pay for any such expenses not covered by her insurance.
The court recognized that a divorce would result in the husband losing coverage under the wife’s benefits. However, while this would result in a financial loss for the husband, the court noted that “this is not the type of disadvantage that Rule 12(6) is intended to prevent. Delaying a divorce would only be legally justified be in a situation where allowing the divorce claim to be dealt with earlier than the other issues would negatively impact the husband’s claim for other remedies or would impact an order requiring the wife to contribute to the son’s expenses. In such instance, fairness would require all claims to be addressed at the same time.
In the particular circumstances, however, the severance of the divorce claim would not result in any legal disadvantage to the husband and must be granted.
At Gelman & Associates, our experienced divorce lawyers strive to provide clients with the information they require to make educated decisions about the end of their marriage. In addition to the extensive web-based resources we make available, all prospective clients are given a comprehensive family law kit during their initial consultation, with ample information and resources to help them understand and navigate the separation and divorce process. Call us at (416) 736-0200 or 1-844-736-0200 or contact us online for an initial consultation.