Since the instalment of the “no fault” divorce regime, divorce is available in Canada virtually on demand. However, it continues to be a judicial process, even when the parties are in agreement. (Certain civil law countries allow divorce to be granted administratively.)
The current Divorce Act* retains several bars to the granting of divorce, namely collusion, connivance, and condonation.
Collusion refers to “agreement or conspiracy … for the purpose of subverting the administration of justice, and includes any agreement … to fabricate or suppress evidence or to deceive the court.” For example, it will be considered collusion if the parties claim that they have been separated when in fact they have not.
Connivance typically relates to a spouse who promoted or encouraged, even passively, adultery of the other spouse, while condonation refers to the resumption of cohabitation of a spouse after being forgiven by the innocent spouse, after an act of adultery.
While collusion appears to be an absolute bar, where there is evidence of condonation or connivance, the court may exercise its discretion in granting divorce where in the public interest.
Other bars to divorce include: where the parties fail to satisfy the court that reasonable arrangements for the support of the children has been provided; where one spouse refuses to remove religious barriers to the remarriage of the other.
Finally, in addition to the above bars to divorce, lawyers have a duty to discuss with the spouse the possibility of reconciliation. Judges are similarly obliged to make the same inquiry.^
