Divorcing a Spouse With Dementia or Lost Capacity in Ontario

When your spouse has dementia or has lost the ability to make decisions, the question of divorce is painful and legally complicated. Some people are considering it because the marriage broke down long before the illness. Others are exhausted, or worried about money, and are unsure what options exist.

This article explains the basic divorce rules that still apply, the questions that arise when one spouse cannot take part, and where federal benefits can matter. Capacity is assessed on the facts and the rules for who can act for someone are specific, so this is a place to get advice early from a family lawyer.

The basic divorce rules still apply

An Ontario court can hear a divorce only if either spouse has been habitually resident in the province for at least one year immediately before the proceeding starts. The only ground for divorce is breakdown of the marriage, which is established where the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce.

Spouses are deemed to have lived separate and apart for any period during which they lived apart and either of them intended to live separate and apart from the other. Because the test refers to either spouse, a spouse who cannot form that intention does not necessarily prevent the other from meeting it. How this works in your case, including where your spouse now lives, is a question for a lawyer.

If the spouses resumed cohabitation for a period, or periods totalling, not more than 90 days with reconciliation as its primary purpose, the one-year period is not interrupted. The court also has a duty to satisfy itself that there is no possibility of reconciliation, unless the circumstances make that inappropriate.

Who acts for a spouse who cannot take part

A divorce case is a court proceeding with deadlines. A respondent served with an application in Canada or the United States must serve and file an Answer on Form 10 within 30 days. The time is 60 days if served outside those countries. How a spouse who cannot understand the papers is represented depends on the situation, so it is worth confirming with a lawyer.

The rules on who that person is, how they are appointed and what the court requires are specific, and they depend on the documents your spouse signed earlier and on the facts. For example, whether anyone already holds a power of attorney, and what it covers, is important. Ask a lawyer before you sign or serve anything.

Being on both sides of a case, for example as the spouse starting the divorce and also the person who manages your spouse's affairs, can raise difficult questions. How this applies depends on your situation, so it is worth confirming with a lawyer.

Money, property and the home

Divorce does not only end the marriage. Support, parenting where there are children, and property may all be involved. Court applications for an equalization payment must be made within six years of separation or two years after the divorce is final, whichever comes first.

If your spouse needs care and a transfer of retirement savings is part of a settlement, a transfer of an RRSP to a spouse's or former spouse's RRSP or RRIF on marriage breakdown is allowed where the parties are living separate and apart and the transfer is made under a court order or written separation agreement to settle property rights. Talk to an accountant or lawyer about the tax effects.

Long-term care is not the same as separation

Many couples live apart because one spouse needs care, and the marriage continues. That is different from a separation because the relationship broke down. For the Guaranteed Income Supplement, marital status changes must be reported to Service Canada as soon as possible. Couples living apart for reasons beyond their control, such as long-term care, may get a higher benefit by filing ISP-3040.

Whether a divorce or a separation changes OAS or GIS amounts for your household is something to confirm with Service Canada. The OAS pension amount depends on age and years in Canada, not marital status, but GIS amounts depend on income and marital status. For example, up to $1,138.90 a month for a single, divorced or widowed person with income under $23,112. These amounts are indexed and change.

What to do next

• Gather the marriage certificate, which the court needs unless you explain why you cannot provide it with Form 36.
• Find any power of attorney, guardianship or care documents and note who holds them.
• Write down where each of you has lived and when, and whether and when either of you intended to live separate and apart.
• Collect pension, bank, property and debt records for the property calculation.
• Ask your spouse's care team or doctor what documentation of capacity exists, without making any decisions on your own.
• See a family lawyer before you start or respond to any court document, since deadlines such as the 30-day Answer period apply.

Frequently asked questions