NEWMARKET COURT FILE NO.: FC-14-45535-00

DATE: 20140905

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Ariel Arsen Niyazov, Applicant

and

Olga Tkatch, Applicant

BEFORE: The Honourable Madam Justice McGee

COUNSEL: Ariel Arsen Niyazov, Self-Represented

Olga Tkatch, Self-Represented

HEARD: In Writing

ENDORSEMENT

[1] These co-applicants, Ariel Arsen Niyazov and Olga Tkatch, jointly seek an order for divorce on the grounds of adultery. The parties have no children together.

[2] Following an earlier judicial endorsement, Mr. Niyazov filed an affidavit deposed July 9, 2014, in which he states that, “I hereby admit that I have committed an act of adultery during my marriage to Olga Tkatch.” No other details are provided.

[3] Both parties waive the appeal period, seeking a divorce order effective immediately, and well prior to the anniversary date of their separation: March 15, 2014.

[4] Section 8(1) of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.), provides as follows:

8(1) A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage.

8(2) Breakdown of a marriage is established only if

(a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or

(b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,

(i) committed adultery, or

(ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

[5] A divorce can be granted on the grounds of adultery in an uncontested proceeding where the respondent has provided an affidavit admitting to the adultery[1].

[6] But can a divorce based on adultery be granted on a joint application?

[7] The language of subsection 8(2)(b) above reads as preventing an adultering party from acting as an applicant. Such an interpretation is consistent with Rule 36 of the Family Law Rules which provides that:

36(1) Either spouse may start a divorce case by,

(a) filing an application naming the other spouse as a respondent; or

(b) filing a joint application with no respondent.

(2) In a joint application, the divorce and any other order sought shall be made only with the consent of both spouses.

(3) In an application for divorce claiming that the other spouse committed adultery with another person, that person does not need to be named, but if named, shall be served with the application and has all the rights of a respondent in the case. (emphasis added)

[8] It has long been held that a party must not be allowed to use his or her own misconduct as the basis for a petition for a divorce. Within Keats v. Keats and Allen[2], is quoted the sanguine words of Scrutton L.J. in Hyman v. Hyman; Hughes v. Hughes[3]:

The stability of the marriage tie, and the terms on which it should be dissolved, involve far wider considerations than the will or consent of the parties to the marriage. The Court does not, as other Courts do, act on mere consents or defaults of pleading, or mere admissions by the parties.

[9] Otherwise stated, the institution of marriage is of sufficient importance to the public interest that it is regarded by the law as requiring special protection. It is not merely the private concern of the parties, and although such sentiment may be at first glance strike the reader as antiquated, it remains alive and well within the present day preamble of the Family Law Act,

Whereas it is desirable to encourage and strengthen the role of the family; and whereas for that purpose it is necessary to recognize the equal position of spouses as individuals within marriage and to recognize marriage as a form of partnership; and whereas in support of such recognition it is necessary to provide in law for the orderly and equitable settlement of the affairs of the spouses upon the breakdown of the partnership, and to provide for other mutual obligations in family relationships, including the equitable sharing by parents of responsibility for their children.

[10] The jurisdiction of the Court in divorce matters differs from that in other litigation adventures. The Court is vested with a peculiar duty of protecting the sanctity of marriage and the family in the exercise of its responsibilities, in so far as it can.

[11] I find that the relevant sections of both the Divorce Act and the Family Law Act operate to prevent a co-applicant from seeking an order for divorce based on adultery. Section 8(2)(ii) of the Divorce Act states that a divorce based on adultery can only be brought by the innocent spouse against the party that itself committed the adultery, and not by the guilty spouse. In a joint-application, the guilty party would be one of the co-applicants bringing the application, which is not permitted under s.8(2)(ii).

[12] Motion for divorce denied.

McGee J.

Released: September 5, 2014

[1] d’Entremont v. d’Entremont, [1992] N.S.J. No. 509.

[2] Keats v. Keats and Allen, 1942 117 (ON SC), [1942] O.R. 679 (H.C.J.).

[3] Hyman v. Hyman; Hughes v. Hughes, [1929] p.1, at p.30.