Earlier this week it was reported that legendary guitarist from Guns n' Roses, Saul "Slash" Hudson, decided against divorcing his wife of nine years. Slash and Perla Ferrar have two sons together, ages six and eight. Slash has reportedly filed a request for dismissal of the divorce in Los Angeles.
What if Slash and Perla were living in Ontario?
There are two issues to consider here regarding how this situation would be handled in Ontario; one is substantively legal and the other, procedural.
How would this affect their claim for divorce should the two decide in the future that they do, in fact, want to separate?
In Canada, pursuant to the Divorce Act, in order to be granted a divorce, a couple must demonstrate that there has been a breakdown of their marriage as evidenced either by:
- the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or
-
The spouse against whom the divorce proceeding is brought has, since celebration
of the marriage:
- committed adultery; or
- treated the other spouse with physical or mental cruelty.
In this case, there is no evidence of any adultery or mental or physical cruelty, so we can assume that the couple would attempt to demonstrate a breakdown of their marriage through evidence that they had lived separate and apart for a period of at least one year.
In order to prove that they had been living separate and apart, the couple would also have to demonstrate that during the year either that they actually lived apart or that either of them had the intention to live separate and apart from the other.
The important factor in this case is the time period of one year. It has been noted that the couple separated in July of this year, thus if they can demonstrate that they had been living separate and apart since then, it would count as four months toward the one year total amount of time before a Divorce would be granted. The period of one year will not be considered to be interrupted either where one of the spouses becomes incapable of forming or having an intention to live separate and apart or when the spouses resume living together for the purposes of reconciliation as long as this period does not amount to more than a total of ninety days.
Therefore, if Slash and Perla decided within 90 days that they had made a mistake and that they would actually like to be divorced, this period of time would not count against their year-long timeline. On the other hand, for example, if they decided in 5 months from now that they wanted to be divorced, the counting of one year living separate and apart would begin again at that point. Overall, Slash's decision to revoke his Divorce Application does not have much bearing on his ability to obtain a Divorce in 6 months from now, should he ultimately wish to do so, as long as he and Perla decided to re-file their Applications before they lived together again for an aggregate of 90 days.
What is the process for revoking a claim for divorce that is in the Courts?
In Ontario, if parties decide after they have filed for Divorce that they would like to reconcile instead of moving ahead with their Divorce proceedings, one of the parties must simply serve on the other party and file a Notice of Withdrawal pursuant to the Family Law Rules. With this notice, a party can withdraw all or part of their Application, Answer or Reply.
Therefore, if Slash were in Ontario and he had filed the Application for Divorce, he would simply need to file a Notice of Withdrawal and withdraw the entirety of his Application, thus effectively revoking his claims for same and ending his Divorce proceedings. However, this would not preclude him from filing an Application for Divorce at any time in the future if he and Perla decided that they did want to Divorce afterall.