Divorce When a Spouse Lacks Capacity or Has Dementia in Ontario

Caring for a spouse with dementia or another condition that affects capacity is hard enough. If the marriage has also broken down, you may wonder whether a divorce is even possible when your spouse cannot understand or take part in a court case.

This article explains the general Ontario rules that apply, and where capacity changes how a case is handled. Capacity is a question of fact and law, so a lawyer should confirm how it applies to you before you take any step.

Do you need your spouse's consent?

No. The only ground for divorce is breakdown of the marriage, the other spouse does not have to consent, and no minimum length of marriage is required. Breakdown is usually proved by living separate and apart for at least one year before the court decides the case, and the spouses must have been living apart when the case started.

Spouses count as living apart for any period they lived apart while either one intended to live separately, so only one spouse needs to intend the separation. Whether a spouse who lives in a care home and a spouse who lives at home are living separate and apart in the legal sense depends on the facts, and a lawyer can advise.

The court must also be satisfied there is no possibility the spouses will reconcile. If reconciliation seems possible, it can adjourn the case.

When your spouse cannot take part in the case

If your spouse cannot understand or direct a court case, it is worth asking a lawyer early how the case can be handled. How a case proceeds in that situation depends on the facts, so it is worth confirming with a lawyer.

The family court rules also give special treatment to a "special party". For example, an application, answer or reply of a special party can be withdrawn only with the court's permission. Who counts as a special party, who may act for your spouse, and what steps are needed depend on the facts, so confirm them with a lawyer before you file.

• Ask a lawyer whether you, or someone else, can act for your spouse in a court case, because that depends on your situation.
• Bring any capacity assessments, medical letters and existing legal documents to your first meeting with a lawyer.
• Think about who could act independently if you are the person starting the case and your interests may conflict with your spouse's.

How the court case proceeds

Only the Superior Court of Justice, including its Family Court branch, deals with divorce and property claims. Either spouse may start a divorce by an application naming the other spouse as respondent. A joint application is also possible, but in a joint application the divorce and any other order can be made only with both spouses' consent. Whether a spouse who lacks capacity can give that consent depends on the facts, so it is worth confirming with a lawyer.

A respondent served in Canada or the US has 30 days to serve and file an answer, and someone 18 or older, other than the applicant, must serve the documents. If no answer is filed, an uncontested divorce is decided on paper, and the evidence is an affidavit (Form 36). The court also needs the marriage certificate and a report from the Central Registry of Divorce Proceedings.

If any children of the marriage are involved, the court must be satisfied that reasonable arrangements have been made for their support, or it delays the divorce. Where appropriate, parties must also try to resolve their issues through a family dispute resolution process such as mediation.

Support, property and the home

A divorce does not only end the marriage. Money questions often matter more, and they follow separate rules.

• Anyone who claims support or property must serve and file a financial statement, sworn before a commissioner of oaths.
• The spouse with the smaller net family property is entitled to one-half of the difference between the two (the equalization payment).
• Pension rights count as property.
• Equalization must be claimed by the earliest of 2 years after the divorce, 6 years after separation, or 6 months after the first spouse's death.
• In deciding spousal support, the court looks at each spouse's means, needs and circumstances, and does not consider misconduct in the marriage.
• Both spouses have an equal right to possession of a matrimonial home, and neither can sell or mortgage it without the other's consent or a court order, with listed exceptions. After a divorce, a non-owner spouse's right of possession ends unless an agreement or order says otherwise.

If you divorce, gifts to a former spouse in your will and their appointment as executor are revoked unless the will shows a contrary intention. Because your spouse may be unable to update their own documents, ask a lawyer how to handle this.

What to do next

• Write down the date you separated and where each of you has lived since.
• Collect marriage records, financial statements, pension and property details, and any powers of attorney or capacity assessments.
• Ask a lawyer who can act for your spouse in a case and how the case should be started.
• Consider whether a divorce is necessary now, or whether other protection for you and your spouse is more urgent.
• Keep track of the equalization deadline.

Frequently asked questions