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Prejudicial Divorce

Andy Hayher

Partner

Tel:       403.692.5215
Email:  ahayher@vogel-llp.ca

A recent decision from the British Columbia Supreme Court identified an often used excuse for not acquiescing to a divorce. In Gill v. Gill, Justice Ball presided over an application by a Husband to sever the divorce from the balance of the action and have the divorce granted. This is not unusual and is often done when proper support arrangements for the children are in place pursuant to section 11(b) of the Divorce Act. In Gill, the parties were originally from India and the Wife took the position that the granting of the divorce in Canada would prejudice her claim she was advancing in India. The Wife relied on a letter from a lawyer in India which attached a court decision and gave commentary about Indian law and the effect a decision in Canada would have on her dowry claim in India. The Wife’s counsel from India was not qualified as an expert.

The Court granted the Husband’s application holding that the Wife had not provided proper evidence to support her claim. If the Wife had put forth cogent and compelling evidence, it would have been within Justice Ball’s discretion to dismiss the Husband’s application where there is risk of prejudice. The takeaway from this case for counsel is that if you are going to allege prejudice, be able to back it up.

2020-08-25T12:46:33-06:00August 27th, 2020|

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