Court File and Parties

Court File No.: FS22-00012306-0000 Date: 2023/02/14 Superior Court of Justice - Ontario

Re: CHERYL LYNN WARD-LERCH, Applicant And: JASON HENRY LERCH, Respondent

Before: Justice I.F. Leach

Counsel: Both parties self-representing

Heard: In writing

Endorsement

[1] Before me is an application in writing which the parties bring jointly, seeking an uncontested divorce.

[2] The matter was before the court once before, on October 22, 2022, at which time Justice Raikes made an endorsement essentially noting:

a. that the parties had failed to indicate a precise separation date in the supporting affidavits they had filed; b. that the parties instead had asked that they be granted a divorce simply on the basis of “irreconcilable differences”; c. that the law required separation of the parties for one year or more, (i.e., Parliament’s legislated standard for the sufficient demonstration of marriage breakdown, failing proof of cruelty and/or adultery), before a divorce could be granted on the basis suggested by the parties; and d. that the parties’ request for a divorce on that basis accordingly would be premature unless and until the parties had remained separated for one year or more, at which point their request for a divorce would be reconsidered once they had filed an affidavit confirming a separation date at least one year earlier.

[3] The applicant now has filed a short supplementary affidavit indicating that the parties’ separation date was February 1, 2022; i.e., more than one year ago.

[4] I nevertheless have declined to sign the requested divorce order because I regrettably think there is reason to believe that the evidence in the applicant’s supplementary affidavit may have been tailored inappropriately to expedite granting of the parties’ desired divorce; i.e., by providing an ostensibly sufficient date of separation that actually is inaccurate, and which effectively overstates the length of the parties’ separation, in an effort to nominally satisfy the legal requirements outlined to the parties by Justice Raikes. In that regard:

a. I note in particular that, while the Form 36 supporting affidavits for divorce originally filed by the parties failed to indicate a precise separation date, (as required by Form 36), the Form 8A application form filed and signed by both parties expressly indicated that the parties finally separated “in April 2022 ”. [Emphasis added.] That express indication in the joint application effectively was endorsed and approved by both parties, thereby decreasing the likelihood that it was the product of one individual’s inadvertent mistake. That express indication also appears to have been made in the same handwriting appearing in the applicant’s original Form 36 affidavit and supplementary Form 14A affidavit, and does not sit well with the latter. b. I also note that the application form was completed and signed on September 21, 2022, at which time the parties obviously would have had a better memory of their actual date of separation, earlier that year, than the Applicant would have had when she swore her supplementary Form 14A affidavit on February 2, 2023. c. Moreover, I note that, when the applicant was writing out the substantive text of the supplementary Form 14A affidavit being sworn on February 2, 2023, she initially wrote that the parties had separated on “February 2nd, 2022”, before making an obvious effort to overwrite that originally indicated separation date and change it to “February 1st , 2022”, with the “1 st ” retraced repeatedly so as to make it stand out in effectively bold print; i.e., so that the indicated period of party separation then clearly would be at least one year, thereby satisfying the requirement for further consideration of the application that had been outlined by Justice Raikes.

[5] In such circumstances, I think it inappropriate for the divorce order to be granted prior to May 1, 2023; i.e., at which time the parties will have remained separate for more than a year according to their application material considered in its entirety.

[6] In that regard, I note that our busy court is presented with many such applications in writing, and I certainly am not suggesting that the sworn indication of a particular date of party separation should be questioned regularly or routinely in the absence of something unusual creating a cause for concern.

[7] However, I also am mindful that when Parliament amended the provisions of the Divorce Act so as to enable spouses to obtain a divorce after remaining separate and apart for at least one year, it represented a substantial change in Canada’s divorce law, and a change intended to strike a carefully considered legislated balance between:

a. the views of those who felt that granting divorces too quickly and easily would undermine unduly the institution of marriage; and b. the views of those who felt that unhappy spouses should be granted a divorce on request.

[8] Conscious or subconscious manipulation of the separation dates indicated in divorce applications obviously has the potential to facilitate the latter approach, which Parliament regarded as inappropriate.

[9] Court vigilance in that regard therefore is required, especially in a situation where application material contains important inconsistencies and the application is being “heard” only in writing; i.e., without the court having any opportunity to assess credibility by hearing from the parties directly under oath or affirmation.

[10] In my view, the court accordingly should not grant a divorce in circumstances such as those presented in this case, (i.e., where there are overt inconsistencies regarding the indicated date of party separation and circumstantial concerns about the possible tailoring of evidence), until such time as the parties have been separated for more than a year having regard to all of the information and indications provided in their application material.

[11] Consideration of this application accordingly should be adjourned until May 1, 2023, at which time the application may be placed before another judge for further consideration.

[12] In that regard, I note that I am not seized of the matter. After April 30, 2023, the application may be considered again by any judge of the court.

“Justice I.F. Leach” Justice I.F. Leach Date: February 14, 2023