How Do I Get Divorced

From Clicklaw Wikibooks


The only way to get divorced in Canada is by a court orderA mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision" and "declaration.", and to get a court order you have to start a court proceedingA legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit" or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order.. (Only married spouses need to get divorced; the relationships of unmarried spouses are over when they separate.)

You must have lived in the province in which you are starting the court proceeding for at least one year before you can get started, and you must start your court proceeding in the Supreme CourtNormally referred to as the "Supreme Court of British Columbia," this court hears most court proceedings in this province. The Supreme Court is a court of inherent jurisdiction and is subject to no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada.".

The court proceeding can include claims beside a divorceThe legal termination of a valid marriage by an order of a judge; the ending of a marital relationship and the conjugal obligations of each spouse to the other. See "conjugal rights," "marriage," and "marriage, validity of." order; typically people also ask for orders about the care of children, the payment of child supportMoney paid by one parent or guardian to another parent or guardian as a contribution to the cost of a child's living expenses. and spousal supportMoney paid by one spouse to another spouse either as a contribution toward the spouse's living expenses or to compensate the spouse for the economic consequences of decisions made by the spouses during their relationship., and the division of propertySomething which can be owned. See "chattels" and "real property." and debtA sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt; a "creditor" is the person to whom the debt is owed..

However, you'll be in for a fight if you and your spouseUnder the ''Divorce Act'', either of two people who are married to one another, whether of the same or opposite genders. Under the ''Family Law Act'', married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years but have had a child together. See "marriage" and "marriage-like relationship." don't agree about the orders the court should make. This discussion assumes that the only order anyone is asking for is a divorce order.

Forms involved

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JUS 280 Registration of Divorce Proceedings (Form) PDF
Form F3 Notice of Family Claim PDF DOC HTML PDF PDF (annotated) DOC (fillable)
Form F1 Notice of Joint Family Claim PDF DOC HTML PDF DOC (fillable)
Form F15 Affidavit of Personal Service PDF DOC HTML PDF DOC (fillable)
Form F35 Requisition (Divorce) PDF Multi HTML Multi DOC (fillable)
Form F17 Requisition (General) PDF Multi HTML Multi DOC (fillable)
Form F38 Affidavit - Desk Order Divorce PDF HTML Multi DOC (fillable)
Form F37 Child Support Affidavit PDF Multi HTML Multi DOC (fillable)
Form F36 Certificate of Pleadings PDF Multi HTML Multi DOC (fillable)
Form F52 Final Order PDF HTML DOC (fillable)

Begin the court proceeding

You will need to file a Notice of Family Claim in Form F3, and attach Schedule 1. Schedule 1 gives the court the information it needs to make the divorce order. (A special Notice of Joint Family Claim in Form F1 is used when a couple is asking for the divorce together.) There is a $210 filing fee.

You will be required to file an original copy of your marriage certificate with your Notice of Family ClaimA legal document required by the Supreme Court Family Rules to begin a court proceeding, setting out the relief claimed by the claimant and the grounds on which that relief is claimed. See "action," "claim," "claimant," "pleadings" and "relief.". This is the ugly brown document you got from the government, not the flowery thing you received from your officiant.

You will also be required to fill out a Registration of Divorce Proceeding form. This form must be completed using the online form, printed off (do not complete it by hand), and submitted to the court registryA central office, located in each judicial district, at which the court files for each court proceeding in that district are maintained, and at which legal documents can be filed, searched, and reviewed. with your Notice of Family Claim. The court staff will send this document off to the Central Registry of Divorce Proceedings in Ottawa.

Serve your spouse

Next, have your spouse personally served with a copy of the filed Notice of Family Claim. You can't do this yourself; you must get someone to do it for you. Your process server will need to swear an Affidavit of Personal Service in Form F15 to prove that service was done and when it was done. (Couples who are filing the Joint Notice of Family Claim together don't need to have anyone served.)

Wait

Your spouse has 30 days to defend your claimThe assertion of a legal right to an order or to a thing; the remedy or relief sought by a party to a court proceeding.. What you hope is that your spouse won't file a Response to Family ClaimA legal document required by the Supreme Court Family Rules in which the respondent to a court proceeding sets out his or her reply to the claimant's claim and the grounds for his or her reply. See "action," claim," "Notice of Family Claim" and "pleadings." or CounterclaimA legal document required by the Supreme Court Family Rules in which a respondent sets out a claim for a specific remedy or relief against a claimant. See "Notice of Family Claim" and "Response to Family Claim.", because if this happens you're going to have to settle your differences or deal with a trialThe testing of the claims at issue in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a determination of the parties' claims against one another that is final and binding the parties unless appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction.". (Couples who are filing the Joint Notice of Family Claim together don't need to wait.)

Apply for the divorce order

Once the 30 days are up, you will need to pay an $80 fee and file the following documents:

  1. a Requisition in Form F35 asking for the divorce order,
  2. a Requisition in Form F17 asking the court staff to search for a Response to Family Claim or Counterclaim,
  3. the Affidavit of Personal Service your process server prepared,
  4. a special affidavit in Form F38 giving the court the evidenceFacts or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay," and "testimony." it needs to make the divorce order,
  5. if there are children, a Child Support Affidavit in Form F37 giving the court the evidence it needs to conclude that appropriate arrangements have been made for the support of the children,
  6. a blank Registrar's Certificate in Form F36, and
  7. a draft divorce order in Form F52.

(Couples who are filing the Joint Notice of Family Claim together can file these documents, without the Affidavit of Personal Service, as soon as they've filed their Notice of Family Claim.)

Wait

It can take anywhere from 60 to 120 days for the court staff and a judgeA person appointed by the federal or provincial governments to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, and are subject to appeal. to process your divorce applicationA request to the court that it make an order for a specific remedy or relief usually on an interim or temporary basis, also called a "chambers application" or a "motion." See also "interim application" and "relief.". Start calling the court registry at the 60-day mark to see if your order is ready.

Pick up your divorce order

When your order is ready, head down to the court registry and pick it up. You must then send a copy of the order to your spouse. Congratulations! 31 days from the date the order is made, you'll be divorced.

For more information

A much more detailed description of the divorce process, complete with blank court forms and examples of what they look like when they're filled out properly is available in chapter Separation & Divorce within the section Divorce.

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