COURT FILE NO.: FS-20-97108-00
DATE: 2020 06 15
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Khashif Khan Applicant
Sadiya Obedullah Khopekar Respondent
BEFORE: Bloom, J.
COUNSEL: Alexandrea Grant, for the Applicant
Syed Kabir, for the Respondent
E N D O R S E M E N T
[1] The Applicant seeks a divorce; the Respondent has provided a consent to that relief.
[2] I unable to grant the order sought. I shall explain my reasons.
[3] FLR 36(4) and (5) provide:
MARRIAGE CERTIFICATE AND CENTRAL DIVORCE REGISTRY CERTIFICATE
(4) The court shall not grant a divorce until the following have been filed:
A marriage certificate or marriage registration certificate, unless the application states that it is impractical to obtain a certificate and explains why.
A report on earlier divorce cases started by either spouse, issued under the Central Registry of Divorce Proceedings Regulations (Canada). O. Reg. 114/99, r. 36 (4).
DIVORCE BASED ON AFFIDAVIT EVIDENCE
(5) An affidavit in Form 36 containing the following information shall be filed in accordance with subrule (5.1):
Confirmation that all the information in the application is correct, except as stated in the affidavit.
If no marriage certificate or marriage registration certificate has been filed, sufficient information to prove the marriage.
Proof of any previous divorce or the death of a party’s previous spouse, unless the marriage took place in Canada.
The information about arrangements for support of any children of the marriage required by paragraph 11 (1) (b) of the Divorce Act (Canada), and the income and financial information required by section 21 of the child support guidelines attached as exhibits.
Any other information necessary for the court to grant the divorce. O. Reg. 298/18, s. 19 (1).
[4] The Applicant has provided evidence that the marriage certificate is not available to him, since it had been filed before the suspension of normal court operations. Accordingly, I would have applied the exception in FLR 36(4) 1. However, the Applicant has not complied with the requirement for a clearance certificate in FLR 36(4) 2.
[5] Further, the Applicant has not provided clear evidence that the Respondent had not been married, her previous spouse had died, or she was divorced, prior to the marriage under consideration; that evidence is required by FLR 36(5) 3.
[6] The date on which the amended affidavit for divorce was commissioned was omitted from that document.
[7] Accordingly, I dismiss the application for divorce by the Applicant without prejudice to his re-applying on sufficient materials.
[8] Additionally, I will address the issue of the effective date of a divorce, since the application made submissions in that regard.
[9] S. 12(1) and (2) of the Divorce Act provide:
Effective date generally
12 (1) Subject to this section, a divorce takes effect on the thirty-first day after the day on which the judgment granting the divorce is rendered.
Special circumstances
(2) Where, on or after rendering a judgment granting a divorce,
(a) the court is of the opinion that by reason of special circumstances the divorce should take effect earlier than the thirty-first day after the day on which the judgment is rendered, and
(b) the spouses agree and undertake that no appeal from the judgment will be taken, or any appeal from the judgment that was taken has been abandoned,
the court may order that the divorce takes effect at such earlier time as it considers appropriate.
[10] The requirements set out in both paragraphs (a) and (b) of subsection 2 must be satisfied before an order may be made under that provision.
Bloom J.
DATE: June 15, 2020
COURT FILE NO.: FS-20-97108-00
DATE: 2020 06 15
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Khashif Khan v. Sadiya Obedullah Khopekar
BEFORE: Bloom, J.
COUNSEL: Alexandrea Grant, for the Applicant
Syed Kabir, for the Respondent
ENDORSEMENT
Bloom, J.
DATE: June 15, 2020