Divorce: corollary proceedings. It is possible to file an application asking only for divorce, or asking for divorce together with an order for support (spousal or child) and (or) custody. Corollary are those claims, whether involving support or custody, joined to the divorce claim. They are “corollary” because they are separate, but presuppose a divorce claim.
Divorce: what may be contested. Entitlement to a divorce by reason of separation is as of right, if the statutory period of separation (12 months preceding the granting of the divorce) has been met. Hence, if neither the commencement nor the duration of the separation are in dispute, an application for divorce ordinarily cannot be contested. In the vast majority of cases, the parties’ separation is a sufficient ground and there is no need to invoke alternative grounds such as cruelty or adultery. If for any reason it is necessary to consider alternative grounds, what may or may not be contested will depend on the circumstances.
Divorce: children and separation agreement. Entitlement to a divorce as of right (by reason of separation) is not automatic if there are “children of the marriage” and no “reasonable arrangements” for child support are in place. The court is mandated to refuse granting the divorce, until such arrangements have been made. Such arrangements are normally evidenced by means of a separation agreement.
Divorce: severance. When it is necessary or desirable, under the rules of the court, that the claim for divorce be processed apart from any corollary claims, a severance is necessary, whereby the divorce is disjoined and the corollary claims are processed separately; alternatively, where the divorce cannot otherwise be granted because no “reasonable arrangements” for child support are in place.
Divorce: “child of the marriage.” A child of the marriage is under the age of majority (eighteen in Ontario) or over the age of majority, but unable to “withdraw from parental charge”; the exception, unable to “withdraw [...] by reason of illness, disability or other cause,” entitles those over the age of majority to support on account of being enrolled in full-time post-secondary studies.
Divorce: “standing in the place of a parent.” A “child of the marriage” includes one in relation to whom the spouses, either or both, stand in the place of a parent; hence such a child, or a child who is not one’s biological child, may be the subject of a support or custody order.
Divorce: “child of the marriage” for support, but not custody. It is unlikely that one will seek or obtain a custody order in relation to an adult (over eighteen) individual, but not impossible. The incidents of custody normally involve decision-making with respect to a minor; hence exercising the incidents of custody in relation to an adult requires special circumstances. In the normal situation such circumstances probably do not exist, and therefore a child “of the marriage” is such for the purposes of support, not custody. Still, if the individual fits the definition of “child of the marriage,” then the person’s age and circumstances may be taken into account in connection to whether or not a custody order, over and above a support order, should be made.
Divorce: recognition of foreign divorce. If an individual intending to marry in Ontario has been previously divorced outside Canada, the foreign divorce is not automatically recognized, and the individual applying for a marriage licence in Ontario requires the opinion of an Ontario lawyer to the effect that the divorce is valid in Canada. Such an opinion, once provided, is appended to the application.