2013-05-05T22:40:29Z

Gayla Reid: /* Direct placement by a birth parent */

{{JP Boyd on Family Law TOC|expanded = other}}

Adoption is the voluntary creation of a brand new parent-child relationship where there wasn't one before. When an adoption order is made, the adoptive parents take on all of the rights, duties, obligations and liabilities of a parent of the child.

At the same time, however, one or both of the child's natural parents are stripped of those rights, duties, obligations and liabilities as if they are and always have been strangers to the child.

This section provides an overview of adoption, describes the private adoption process and the process for adopting through the [http://www.gov.bc.ca/mcf/ Ministry for Children and Family Development], and provides contact information for the four adoption agencies licensed in British Columbia.

==Introduction==

There are two basic types of adoption: adoption within a family unit by a relative or stepparent with the consent of the natural parent; and, adoption by a stranger through an agency.

The first kind can be handled privately through the court process.

The second kind requires either the involvement of the [http://www.bcadoption.com Adoptive Families Association of British Columbia], a contractor of the provincial Ministry for Children and Family Development, in the case of children in the care of the government, or the use of licensed adoption agency in the case of children not in government care. A list of the four adoption agencies licensed in British Columbia is provided at the end of this section.

The provincial ''[http://canlii.ca/t/84g5 Adoption Act]'' sets out the rules that guide parents and the courts through the adoption process. As in all matters involving children, the courts are primarily concerned with the best interests of the child, and s. 3 of the act sets a number of factors that should be considered in determining what is in the child's best interests.

<blockquote><tt>(1) All relevant factors must be considered in determining the child's best interests, including for example:</tt></blockquote>
<blockquote><blockquote><tt>(a) the child's safety;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the child's physical and emotional needs and level of development;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the importance of continuity in the child's care;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the importance to the child's development of having a positive relationship with a parent and a secure place as a member of a family;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the quality of the relationship the child has with a birth parent or other individual and the effect of maintaining that relationship;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(f) the child's cultural, racial, linguistic and religious heritage;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) the child's views;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) the effect on the child if there is delay in making a decision.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the child is an aboriginal child, the importance of preserving the child's cultural identity must be considered in determining the child's best interests.</tt></blockquote>

The ''[http://canlii.ca/t/84g5 Adoption Act]'' recognizes four types of adoption:

#relative adoption, where a child is adopted by a relative or stepparent,
#placement of a child by the child's natural parent or guardian with a non-family member adoptive parent or parents, called a direct placement,
#placement of a child by the Ministry for Children and Family Development, actually through the Ministry's contractor, and
#placement of a child, sometimes from outside Canada, by an adoption agency licensed by the Ministry.

===The effect of adoption===

Section 37 of the ''[http://canlii.ca/t/84g5 Adoption Act]'' sets out the consequences and meaning of an adoption and says:

<blockquote><tt>(1) When an adoption order is made,</tt></blockquote>
<blockquote><blockquote><tt>(a) the child becomes the child of the adoptive parent,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the adoptive parent becomes the parent of the child, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the birth parents cease to have any parental rights or obligations with respect to the child, except a birth parent who remains under subsection (2) a parent jointly with the adoptive parent.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the application for the adoption order was made by an adult to become a parent jointly with a birth parent of the child, then, for all purposes when the adoption order is made,</tt></blockquote>
<blockquote><blockquote><tt>(a) the adult joins the birth parent as parent of the child, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the child's other birth parent ceases to have any parental rights or obligations with respect to the child.</tt></blockquote></blockquote>

In other words, an adopted child's new parents become that child's parents for all possible reasons and purposes. The adoptive parents take on all the rights and obligations the birth parents had, and, at the same time, the birth parent or parents lose all the rights and obligations they had in relation to the child.

Among other things, the natural parent will lose rights such as being kept up to speed on developments in the child's health and schooling, and obligations such as a duty to pay child support. In a 2003 case of the Supreme Court, ''[http://canlii.ca/t/1pt0x Zien v. Woda]'', 2003 BCSC 1238 the court held that the adoption of a child by the mother's new partner stripped the natural father of his obligation to pay support, effective from the moment the adoption order was made.

From the time an adoption order is made, the birth parent has no more legal interest in the adopted child, including how the child is raised, where the child lives, where the child goes to school, what sort of medical treatment he or she receives, or how the child is disciplined. In the eyes of the law, the adoptive parents are the only parents the child has.

===Who can place a child for adoption===

Section 4 of the ''[http://canlii.ca/t/84g5 Adoption Act]'' says that:

<blockquote><tt>The following may place a child for adoption:</tt></blockquote>
<blockquote><blockquote><tt>(a) the director;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) an adoption agency;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a birth parent or other guardian of the child, by direct placement in accordance with this Part;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) a birth parent or other guardian related to the child, if the child is placed with a relative of the child.</tt></blockquote></blockquote>

===Who can receive a child for adoption===

Section 5 of the ''[http://canlii.ca/t/84g5 Adoption Act]'' says that a child can be placed for adoption with one or two people, as long as they live in the province.

<blockquote><tt>(1) A child may be placed for adoption with one adult or 2 adults jointly.</tt></blockquote>
<blockquote><tt>(2) Each prospective adoptive parent must be a resident of British Columbia</tt></blockquote>

Section 29 says that one or two people can make an application to adopt a child, as long as they live in the province:

<blockquote><tt>(1) One adult alone or 2 adults jointly may apply to the court to adopt a child in accordance with this Act.</tt></blockquote>
<blockquote><tt>(2) One adult may apply to the court to jointly become a parent of a child with a birth parent of the child.</tt></blockquote>
<blockquote><tt>(3) Each applicant must be a resident of British Columbia.</tt></blockquote>

The ''[http://canlii.ca/t/84g5 Adoption Act]'' doesn't say anything about the gender or sexual orientation of the adopting parents. There have in fact been many cases where same-sex couples have successfully adopted children in British Columbia; the sexual orientation of the adopting parents is not an issue in this province.

===Who must consent to the adoption===

According to s. 13 of the ''[http://canlii.ca/t/84g5 Adoption Act]'' , the following people must provide their consent to a proposed adoption:

#the birth mother of the child,
#the natural father,
#the child's guardian, if someone has been appointed to fill this role,
#the child, if the child is 12 years of age or older, and
#the Director under the ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]'', but only if the child is in the care and custody of the government.

The act also says that a birth mother's consent to the adoption is only valid if she gives it 10 or more days after the child's birth. The act also provides that a parent under the age of 19 may give a valid consent.

===Revoking consent===

The people who must give their consent can, if they choose, change their mind and revoke their consent, but only within certain time periods or before certain events happen.

*A birth mother may revoke her consent at any time until the child is 30 days old, or, afterwards at any time until the child is placed with the adoptive parents.
*A child can revoke his or her consent at any time until the adoption order is made.

After the child is placed, a consent can only be revoked after an application to the court, providing the application is made before the adoption order is pronounced.

==The private adoption process==

This discussion concerns the two types of adoptions that do not go through the Ministry or an adoption agency: the direct placement process and the relative adoption process.

===Direct placement by a birth parent===

Firstly, the adoptive parents must notify the Director of the [http://www.mcf.gov.bc.ca/adoption/index.htm Ministry for Children and Family Development's Adoption Division] of their intent to adopt a child by filing with the ministry Form 1 of the ''[http://canlii.ca/t/859w Adoption Act Regulation]''. This form sets out: the name of the birth mother; the name of the natural father, if known; an explanation of the circumstances leading to the proposed adoption; and, the names of the adoptive parents.

The Director then contacts both the adoptive parents and the natural parents of the child and advises them of the legal consequences of adoption, prepares a ''pre-placement assessment'' of the adoptive parents, and provides the adoptive parents with information about the child's natural parents, including their medical history.

A pre-placement assessment includes a criminal records check of the adoptive parents, a check for past involvement with the ministry, an assessment of the birth mother and father, and an assessment of the suitability of the adoptive parents and their home to receive a new child.

The adoptive parents must obtain the consent of the following people to the adoption:

*the child, if the child is 12 years of age or older,
*the birth mother,
*the child's natural father, if known, and
*the child's guardian, if anyone has been appointed as such.

The ''[http://canlii.ca/t/84g5 Adoption Act]'' requires adoptive parents to make "reasonable efforts" to notify the father of the intended adoption. If the father's whereabouts are known, the adoptive parents should send a Notice of Proposed Adoption to the father by registered mail. The court may require that an ad be placed in the Legal Notices section of the newspaper classified ads to ensure that every effort has been made to find the father and alert him to the adoption. Under certain circumstances, it is possible to obtain an order that this requirement be disregarded.

Once the consent of the birth parent or guardian of the child has been obtained, the adoptive parents and the birth parent or guardian become joint guardians of the child. This joint guardianship will last until:

*the court makes an adoption order,
*any of the consents to the adoption are revoked, or
*the court otherwise terminates the joint guardianship.

Once these conditions have been met, the birth parent or guardian of the child will transfer the custodycustody of the child to the adoptive parents in writing. The adoptive parents must notify the Director that they have received the adoptive child into their home within 14 days. The Director must prepare a "post-placement report" within six months of the placement of the child in the new home.

Finally, the adoptive parents must prepare and file a Petition for the adoption of the child in the registry of the Supreme Court, under the [http://canlii.ca/t/8mcr Supreme Court Family Rules], once the child has spent six months in their care and custody. The filed Petition and supporting documents must be served on the Director. Part 3 of the ''[http://canlii.ca/t/84g5 Adoption Act]'' provides the details of the court process that will occur after this point, including: the documents which must be filed in court, who must be notified of the proceeding, and whether the application will require an oral hearing before a judge.

===Relative adoption===

The process for relative adoptions is a lot easier, mostly because the ''[http://canlii.ca/t/84g5 Adoption Act]'' exempts this sort of adoption from the notice requirements for direct placement adoptions. This means that the portion of the process described above, involving the Ministry and the Director of the Adoptions Division, can be bypassed, and no assessments or reports are required from the Director.

Stepparents may apply under this process for an order that they become "jointly" a parent of the child with his or her birth parent, usually the stepparent's spouse, the natural parent of the child. This is another form of relative adoption, and has the same effect as a normal adoption, meaning that the other natural parent (the one who isn't married to the step-parent) of the child loses his or her rights and obligations in relation to the child.

==Adoption through the Ministry==

People who seek to adopt through the Ministry for Children and Family Development usually do so because they wish to adopt a child but don't have any particular child in mind, as is the case in direct placements or relative adoptions.

The first step in this process is to contact the Adoptive Families Association of British Columbia and speak with an adoption worker. The worker will arrange a meeting with the adopting parents, who will have to fill out an adoption application and an adoption questionnaire. The questionnaire asks the adopting parents about the sorts of children they are prepared to adopt, including racial characteristics, illnesses, mental and physical disabilities, and so forth. The application asks for the following information:

*the name, address, education and present employment of each applicant,
*the work history of each applicant,
*the cultural and racial background, and religion or belief system of each applicant,
*the applicants' interests and hobbies,
*the names of other children and other members of the applicants' household, including boarders,
*a statement of the family finances, and
*the names and addresses of four personal references.

You can download the [http://www.mcf.gov.bc.ca/adoption/pdf/cf_1013.pdf application] and [http://www.mcf.gov.bc.ca/adoption/pdf/cf_1048.pdf questionnaire] at the [http://www.mcf.gov.bc.ca/adoption/index.htm Ministry's website], and read a helpful summary of the process. A more succinct summary is available at the [http://www.bcadoption.com Adoptive Families Association of BC website].

The ministry will also conduct a criminal records check and check for any past contact with the ministry involving child- and family-related problems.

The worker will then begin a ''homestudy''. A homestudy is an assessment of the applicants completed over several months through visits to their home. It includes an educational component which prepares the adopting parents to meet the needs of the adopted child.

Once the homestudy is complete, the adoption worker begins the process of matching available children to adopting parents. Once a match is found and the adopting parents accept the child, they begin pre-placement visits with the child. (If the child lives in a different community, the adopting parents will be asked to visit the child in his or her community.) For these first visits, a worker will be present. Over time, the adopting parents will begin to spend time alone with the child and have visits at their own home. If things go well, the adoption worker will make a decision about the suitability of the placement based on what he or she considers to be in the child's best interests.

The steps between the initial application and the match are not particularly quick. In recognition of this, be prepared for homestudies to be repeated every 12 months. Criminal records checks and checks for previous ministry involvement are conducted every two years.

Finally, if all parties are satisfied, the child is placed in the home of the adopting parents. At this point the adopting parents will fill out the Notice of Placement described above. After six months of the child living in the care and custody of the adopting parents, the parents can begin the process of applying to the Supreme Court for an adoption order. You should be aware that during the whole of this period, and until an adoption order is made, the Director remains the legal guardian of the child.

Note that if the child is between the ages of seven and 12, an independent worker will meet with him or her to do a report on the child's views of the proposed adoption. This report will form part of the materials that the court will consider in hearing the adoption application. A child over the age of 12 must consent to the adoption.

==Adoption agencies==

The following four organizations are licensed by the provincial government under the Adoption Act to operate as adoption agencies. These are ''all'' of the licensed agencies in British Columbia.

<blockquote>'''[http://www.choicesadoption.ca/home/index.php Choices Adoption & Counselling Services]''' 
100-850 Blanshard Street 
Victoria, British Columbia, V8W 2H2 
Phone: 250-479-9811 
Fax: 250-479-9850 
Toll Free: 1-888-479-9811</blockquote>

<blockquote>'''[http://www.fsgv.ca/ Family Services of Greater Vancouver]''' 
205-1600 West 6th Avenue 
Vancouver, British Columbia, V6J 1R3 
Phone: 604-736-7613 
Fax: 604-736-7916 
Toll Free: 1-866-582-3678</blockquote>

<blockquote>'''[http://www.sunriseadoption.com/ Sunrise Adoption Centre]''' 
102-171 West Esplanade 
North Vancouver, British Columbia, V7M 3J9 
Phone: 604-984-2488 
Fax: 604-984-2498 
Toll Free: 1-888-984-2488</blockquote>

<blockquote>'''[http://kcr.ca/adoption-services/the-adoption-centre-of-british-columbia/ The Adoption Centre of British Columbia]''' 
255 Lawrence Avenue 
Kelowna, British Columbia, V1Y 6L2 
Phone: 250-763-8002 
Fax: (250) 763-6282 
Toll Free: 1-800-935-4237</blockquote>



==Resources and links==

===Legislation===

* [http://canlii.ca/t/84g5 ''Adoption Act'']
* ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]''
* ''[http://canlii.ca/t/859w Adoption Act Regulation]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]

===Documents===

* [http://www.mcf.gov.bc.ca/adoption/pdf/cf_1013.pdf Application to Adopt]
* [http://www.mcf.gov.bc.ca/adoption/pdf/cf_1048.pdf Adoption Questionnaire]

===Links===

* [http://www.gov.bc.ca/mcf/ Ministry of Children and Family Development Website]
* [http://www.bcadoption.com/ Adoptive Families Association of British Columbia]
* [http://www.mcf.gov.bc.ca/adoption/index.htm Ministry of Children and Family Development Adoption Division]
* [http://www.choicesadoption.ca/home/index.php Choices Adoption & Counselling Services]
* [http://www.fsgv.ca/ Family Services of Greater Vancouver]
* [http://www.sunriseadoption.com/ Sunrise Adoption Centre]
* [http://kcr.ca/adoption-services/the-adoption-centre-of-british-columbia/ The Adoption Centre of British Columbia]

{{REVIEWED | reviewer = [[JP Boyd]], March 24, 2013}}

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Talk:Adopting Children

2013-05-05T22:39:18Z

Gayla Reid: Blanked the page

Adopting Children

2013-05-05T22:36:24Z

Gayla Reid: /* Who must consent to the adoption */

{{JP Boyd on Family Law TOC|expanded = other}}

Adoption is the voluntary creation of a brand new parent-child relationship where there wasn't one before. When an adoption order is made, the adoptive parents take on all of the rights, duties, obligations and liabilities of a parent of the child.

At the same time, however, one or both of the child's natural parents are stripped of those rights, duties, obligations and liabilities as if they are and always have been strangers to the child.

This section provides an overview of adoption, describes the private adoption process and the process for adopting through the [http://www.gov.bc.ca/mcf/ Ministry for Children and Family Development], and provides contact information for the four adoption agencies licensed in British Columbia.

==Introduction==

There are two basic types of adoption: adoption within a family unit by a relative or stepparent with the consent of the natural parent; and, adoption by a stranger through an agency.

The first kind can be handled privately through the court process.

The second kind requires either the involvement of the [http://www.bcadoption.com Adoptive Families Association of British Columbia], a contractor of the provincial Ministry for Children and Family Development, in the case of children in the care of the government, or the use of licensed adoption agency in the case of children not in government care. A list of the four adoption agencies licensed in British Columbia is provided at the end of this section.

The provincial ''[http://canlii.ca/t/84g5 Adoption Act]'' sets out the rules that guide parents and the courts through the adoption process. As in all matters involving children, the courts are primarily concerned with the best interests of the child, and s. 3 of the act sets a number of factors that should be considered in determining what is in the child's best interests.

<blockquote><tt>(1) All relevant factors must be considered in determining the child's best interests, including for example:</tt></blockquote>
<blockquote><blockquote><tt>(a) the child's safety;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the child's physical and emotional needs and level of development;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the importance of continuity in the child's care;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the importance to the child's development of having a positive relationship with a parent and a secure place as a member of a family;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the quality of the relationship the child has with a birth parent or other individual and the effect of maintaining that relationship;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(f) the child's cultural, racial, linguistic and religious heritage;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) the child's views;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) the effect on the child if there is delay in making a decision.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the child is an aboriginal child, the importance of preserving the child's cultural identity must be considered in determining the child's best interests.</tt></blockquote>

The ''[http://canlii.ca/t/84g5 Adoption Act]'' recognizes four types of adoption:

#relative adoption, where a child is adopted by a relative or stepparent,
#placement of a child by the child's natural parent or guardian with a non-family member adoptive parent or parents, called a direct placement,
#placement of a child by the Ministry for Children and Family Development, actually through the Ministry's contractor, and
#placement of a child, sometimes from outside Canada, by an adoption agency licensed by the Ministry.

===The effect of adoption===

Section 37 of the ''[http://canlii.ca/t/84g5 Adoption Act]'' sets out the consequences and meaning of an adoption and says:

<blockquote><tt>(1) When an adoption order is made,</tt></blockquote>
<blockquote><blockquote><tt>(a) the child becomes the child of the adoptive parent,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the adoptive parent becomes the parent of the child, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the birth parents cease to have any parental rights or obligations with respect to the child, except a birth parent who remains under subsection (2) a parent jointly with the adoptive parent.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the application for the adoption order was made by an adult to become a parent jointly with a birth parent of the child, then, for all purposes when the adoption order is made,</tt></blockquote>
<blockquote><blockquote><tt>(a) the adult joins the birth parent as parent of the child, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the child's other birth parent ceases to have any parental rights or obligations with respect to the child.</tt></blockquote></blockquote>

In other words, an adopted child's new parents become that child's parents for all possible reasons and purposes. The adoptive parents take on all the rights and obligations the birth parents had, and, at the same time, the birth parent or parents lose all the rights and obligations they had in relation to the child.

Among other things, the natural parent will lose rights such as being kept up to speed on developments in the child's health and schooling, and obligations such as a duty to pay child support. In a 2003 case of the Supreme Court, ''[http://canlii.ca/t/1pt0x Zien v. Woda]'', 2003 BCSC 1238 the court held that the adoption of a child by the mother's new partner stripped the natural father of his obligation to pay support, effective from the moment the adoption order was made.

From the time an adoption order is made, the birth parent has no more legal interest in the adopted child, including how the child is raised, where the child lives, where the child goes to school, what sort of medical treatment he or she receives, or how the child is disciplined. In the eyes of the law, the adoptive parents are the only parents the child has.

===Who can place a child for adoption===

Section 4 of the ''[http://canlii.ca/t/84g5 Adoption Act]'' says that:

<blockquote><tt>The following may place a child for adoption:</tt></blockquote>
<blockquote><blockquote><tt>(a) the director;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) an adoption agency;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a birth parent or other guardian of the child, by direct placement in accordance with this Part;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) a birth parent or other guardian related to the child, if the child is placed with a relative of the child.</tt></blockquote></blockquote>

===Who can receive a child for adoption===

Section 5 of the ''[http://canlii.ca/t/84g5 Adoption Act]'' says that a child can be placed for adoption with one or two people, as long as they live in the province.

<blockquote><tt>(1) A child may be placed for adoption with one adult or 2 adults jointly.</tt></blockquote>
<blockquote><tt>(2) Each prospective adoptive parent must be a resident of British Columbia</tt></blockquote>

Section 29 says that one or two people can make an application to adopt a child, as long as they live in the province:

<blockquote><tt>(1) One adult alone or 2 adults jointly may apply to the court to adopt a child in accordance with this Act.</tt></blockquote>
<blockquote><tt>(2) One adult may apply to the court to jointly become a parent of a child with a birth parent of the child.</tt></blockquote>
<blockquote><tt>(3) Each applicant must be a resident of British Columbia.</tt></blockquote>

The ''[http://canlii.ca/t/84g5 Adoption Act]'' doesn't say anything about the gender or sexual orientation of the adopting parents. There have in fact been many cases where same-sex couples have successfully adopted children in British Columbia; the sexual orientation of the adopting parents is not an issue in this province.

===Who must consent to the adoption===

According to s. 13 of the ''[http://canlii.ca/t/84g5 Adoption Act]'' , the following people must provide their consent to a proposed adoption:

#the birth mother of the child,
#the natural father,
#the child's guardian, if someone has been appointed to fill this role,
#the child, if the child is 12 years of age or older, and
#the Director under the ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]'', but only if the child is in the care and custody of the government.

The act also says that a birth mother's consent to the adoption is only valid if she gives it 10 or more days after the child's birth. The act also provides that a parent under the age of 19 may give a valid consent.

===Revoking consent===

The people who must give their consent can, if they choose, change their mind and revoke their consent, but only within certain time periods or before certain events happen.

*A birth mother may revoke her consent at any time until the child is 30 days old, or, afterwards at any time until the child is placed with the adoptive parents.
*A child can revoke his or her consent at any time until the adoption order is made.

After the child is placed, a consent can only be revoked after an application to the court, providing the application is made before the adoption order is pronounced.

==The private adoption process==

This discussion concerns the two types of adoptions that do not go through the Ministry or an adoption agency: the direct placement process and the relative adoption process.

===Direct placement by a birth parent===

Firstly, the adoptive parents must notify the Director of the [http://www.mcf.gov.bc.ca/adoption/index.htm Ministry for Children and Family Development's Adoption Division] of their intent to adopt a child by filing with the ministry Form 1 of the ''[http://canlii.ca/t/859w Adoption Act Regulation]''. This form sets out: the name of the birth mother; the name of the natural father, if known; an explanation of the circumstances leading to the proposed adoption; and, the names of the adoptive parents.

The Director then contacts both the adoptive parents and the natural parents of the child and advises them of the legal consequences of adoption, prepares a ''pre-placement assessment'' of the adoptive parents, and provides the adoptive parents with information about the child's natural parents, including their medical history.

A pre-placement assessment includes a criminal records check of the adoptive parents, a check for past involvement with the ministry, an assessment of the birth mother and father, and an assessment of the suitability of the adoptive parents and their home to receive a new child.

The adoptive parents must obtain the consent of the following people to the adoption:

*the child, if the child is 12 years of age or older,
*the birth mother,
*the child's natural father, if known, and
*the child's guardian, if anyone has been appointed as such.

The ''[http://canlii.ca/t/84g5 Adoption Act]'' requires adoptive parents to make "reasonable efforts" to notify the father of the intended adoption. If the father's whereabouts are known, the adoptive parents should send a Notice of Proposed Adoption to the father by registered mail. The court may require that an ad be placed in the Legal Notices section of the newspaper classified ads to ensure that every effort has been made to find the father and alert him to the adoption. Under certain circumstances, it is possible to obtain an order that this requirement be disregarded.

Once the consent of the birth parent or guardian of the child has been obtained, the adoptive parents and the birth parent or guardian become joint guardians of the child. This joint guardianship will last until:

*the court makes an adoption order,
*any of the consents to the adoption are revoked, or
*the court otherwise terminates the joint guardianship.

Once these conditions have been met, the birth parent or guardian of the child will transfer the custody of the child to the adoptive parents in writing. The adoptive parents must notify the Director that they have received the adoptive child into their home within 14 days. The Director must prepare a "post-placement report" within six months of the placement of the child in the new home.

Finally, the adoptive parents must prepare and file a Petition for the adoption of the child in the registry of the Supreme Court, under the [http://canlii.ca/t/8mcr Supreme Court Family Rules], once the child has spent six months in their care and custody. The filed Petition and supporting documents must be served on the Director. Part 3 of the ''[http://canlii.ca/t/84g5 Adoption Act]'' provides the details of the court process that will occur after this point, including: the documents which must be filed in court, who must be notified of the proceeding, and whether the application will require an oral hearing before a judge.

===Relative adoption===

The process for relative adoptions is a lot easier, mostly because the ''[http://canlii.ca/t/84g5 Adoption Act]'' exempts this sort of adoption from the notice requirements for direct placement adoptions. This means that the portion of the process described above, involving the Ministry and the Director of the Adoptions Division, can be bypassed, and no assessments or reports are required from the Director.

Stepparents may apply under this process for an order that they become "jointly" a parent of the child with his or her birth parent, usually the stepparent's spouse, the natural parent of the child. This is another form of relative adoption, and has the same effect as a normal adoption, meaning that the other natural parent (the one who isn't married to the step-parent) of the child loses his or her rights and obligations in relation to the child.

==Adoption through the Ministry==

People who seek to adopt through the Ministry for Children and Family Development usually do so because they wish to adopt a child but don't have any particular child in mind, as is the case in direct placements or relative adoptions.

The first step in this process is to contact the Adoptive Families Association of British Columbia and speak with an adoption worker. The worker will arrange a meeting with the adopting parents, who will have to fill out an adoption application and an adoption questionnaire. The questionnaire asks the adopting parents about the sorts of children they are prepared to adopt, including racial characteristics, illnesses, mental and physical disabilities, and so forth. The application asks for the following information:

*the name, address, education and present employment of each applicant,
*the work history of each applicant,
*the cultural and racial background, and religion or belief system of each applicant,
*the applicants' interests and hobbies,
*the names of other children and other members of the applicants' household, including boarders,
*a statement of the family finances, and
*the names and addresses of four personal references.

You can download the [http://www.mcf.gov.bc.ca/adoption/pdf/cf_1013.pdf application] and [http://www.mcf.gov.bc.ca/adoption/pdf/cf_1048.pdf questionnaire] at the [http://www.mcf.gov.bc.ca/adoption/index.htm Ministry's website], and read a helpful summary of the process. A more succinct summary is available at the [http://www.bcadoption.com Adoptive Families Association of BC website].

The ministry will also conduct a criminal records check and check for any past contact with the ministry involving child- and family-related problems.

The worker will then begin a ''homestudy''. A homestudy is an assessment of the applicants completed over several months through visits to their home. It includes an educational component which prepares the adopting parents to meet the needs of the adopted child.

Once the homestudy is complete, the adoption worker begins the process of matching available children to adopting parents. Once a match is found and the adopting parents accept the child, they begin pre-placement visits with the child. (If the child lives in a different community, the adopting parents will be asked to visit the child in his or her community.) For these first visits, a worker will be present. Over time, the adopting parents will begin to spend time alone with the child and have visits at their own home. If things go well, the adoption worker will make a decision about the suitability of the placement based on what he or she considers to be in the child's best interests.

The steps between the initial application and the match are not particularly quick. In recognition of this, be prepared for homestudies to be repeated every 12 months. Criminal records checks and checks for previous ministry involvement are conducted every two years.

Finally, if all parties are satisfied, the child is placed in the home of the adopting parents. At this point the adopting parents will fill out the Notice of Placement described above. After six months of the child living in the care and custody of the adopting parents, the parents can begin the process of applying to the Supreme Court for an adoption order. You should be aware that during the whole of this period, and until an adoption order is made, the Director remains the legal guardian of the child.

Note that if the child is between the ages of seven and 12, an independent worker will meet with him or her to do a report on the child's views of the proposed adoption. This report will form part of the materials that the court will consider in hearing the adoption application. A child over the age of 12 must consent to the adoption.

==Adoption agencies==

The following four organizations are licensed by the provincial government under the Adoption Act to operate as adoption agencies. These are ''all'' of the licensed agencies in British Columbia.

<blockquote>'''[http://www.choicesadoption.ca/home/index.php Choices Adoption & Counselling Services]''' 
100-850 Blanshard Street 
Victoria, British Columbia, V8W 2H2 
Phone: 250-479-9811 
Fax: 250-479-9850 
Toll Free: 1-888-479-9811</blockquote>

<blockquote>'''[http://www.fsgv.ca/ Family Services of Greater Vancouver]''' 
205-1600 West 6th Avenue 
Vancouver, British Columbia, V6J 1R3 
Phone: 604-736-7613 
Fax: 604-736-7916 
Toll Free: 1-866-582-3678</blockquote>

<blockquote>'''[http://www.sunriseadoption.com/ Sunrise Adoption Centre]''' 
102-171 West Esplanade 
North Vancouver, British Columbia, V7M 3J9 
Phone: 604-984-2488 
Fax: 604-984-2498 
Toll Free: 1-888-984-2488</blockquote>

<blockquote>'''[http://kcr.ca/adoption-services/the-adoption-centre-of-british-columbia/ The Adoption Centre of British Columbia]''' 
255 Lawrence Avenue 
Kelowna, British Columbia, V1Y 6L2 
Phone: 250-763-8002 
Fax: (250) 763-6282 
Toll Free: 1-800-935-4237</blockquote>



==Resources and links==

===Legislation===

* [http://canlii.ca/t/84g5 ''Adoption Act'']
* ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]''
* ''[http://canlii.ca/t/859w Adoption Act Regulation]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]

===Documents===

* [http://www.mcf.gov.bc.ca/adoption/pdf/cf_1013.pdf Application to Adopt]
* [http://www.mcf.gov.bc.ca/adoption/pdf/cf_1048.pdf Adoption Questionnaire]

===Links===

* [http://www.gov.bc.ca/mcf/ Ministry of Children and Family Development Website]
* [http://www.bcadoption.com/ Adoptive Families Association of British Columbia]
* [http://www.mcf.gov.bc.ca/adoption/index.htm Ministry of Children and Family Development Adoption Division]
* [http://www.choicesadoption.ca/home/index.php Choices Adoption & Counselling Services]
* [http://www.fsgv.ca/ Family Services of Greater Vancouver]
* [http://www.sunriseadoption.com/ Sunrise Adoption Centre]
* [http://kcr.ca/adoption-services/the-adoption-centre-of-british-columbia/ The Adoption Centre of British Columbia]

{{REVIEWED | reviewer = [[JP Boyd]], March 24, 2013}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

Adopting Children

2013-05-05T22:34:16Z

Gayla Reid: /* The effect of adoption */

{{JP Boyd on Family Law TOC|expanded = other}}

Adoption is the voluntary creation of a brand new parent-child relationship where there wasn't one before. When an adoption order is made, the adoptive parents take on all of the rights, duties, obligations and liabilities of a parent of the child.

At the same time, however, one or both of the child's natural parents are stripped of those rights, duties, obligations and liabilities as if they are and always have been strangers to the child.

This section provides an overview of adoption, describes the private adoption process and the process for adopting through the [http://www.gov.bc.ca/mcf/ Ministry for Children and Family Development], and provides contact information for the four adoption agencies licensed in British Columbia.

==Introduction==

There are two basic types of adoption: adoption within a family unit by a relative or stepparent with the consent of the natural parent; and, adoption by a stranger through an agency.

The first kind can be handled privately through the court process.

The second kind requires either the involvement of the [http://www.bcadoption.com Adoptive Families Association of British Columbia], a contractor of the provincial Ministry for Children and Family Development, in the case of children in the care of the government, or the use of licensed adoption agency in the case of children not in government care. A list of the four adoption agencies licensed in British Columbia is provided at the end of this section.

The provincial ''[http://canlii.ca/t/84g5 Adoption Act]'' sets out the rules that guide parents and the courts through the adoption process. As in all matters involving children, the courts are primarily concerned with the best interests of the child, and s. 3 of the act sets a number of factors that should be considered in determining what is in the child's best interests.

<blockquote><tt>(1) All relevant factors must be considered in determining the child's best interests, including for example:</tt></blockquote>
<blockquote><blockquote><tt>(a) the child's safety;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the child's physical and emotional needs and level of development;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the importance of continuity in the child's care;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the importance to the child's development of having a positive relationship with a parent and a secure place as a member of a family;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the quality of the relationship the child has with a birth parent or other individual and the effect of maintaining that relationship;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(f) the child's cultural, racial, linguistic and religious heritage;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) the child's views;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) the effect on the child if there is delay in making a decision.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the child is an aboriginal child, the importance of preserving the child's cultural identity must be considered in determining the child's best interests.</tt></blockquote>

The ''[http://canlii.ca/t/84g5 Adoption Act]'' recognizes four types of adoption:

#relative adoption, where a child is adopted by a relative or stepparent,
#placement of a child by the child's natural parent or guardian with a non-family member adoptive parent or parents, called a direct placement,
#placement of a child by the Ministry for Children and Family Development, actually through the Ministry's contractor, and
#placement of a child, sometimes from outside Canada, by an adoption agency licensed by the Ministry.

===The effect of adoption===

Section 37 of the ''[http://canlii.ca/t/84g5 Adoption Act]'' sets out the consequences and meaning of an adoption and says:

<blockquote><tt>(1) When an adoption order is made,</tt></blockquote>
<blockquote><blockquote><tt>(a) the child becomes the child of the adoptive parent,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the adoptive parent becomes the parent of the child, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the birth parents cease to have any parental rights or obligations with respect to the child, except a birth parent who remains under subsection (2) a parent jointly with the adoptive parent.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the application for the adoption order was made by an adult to become a parent jointly with a birth parent of the child, then, for all purposes when the adoption order is made,</tt></blockquote>
<blockquote><blockquote><tt>(a) the adult joins the birth parent as parent of the child, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the child's other birth parent ceases to have any parental rights or obligations with respect to the child.</tt></blockquote></blockquote>

In other words, an adopted child's new parents become that child's parents for all possible reasons and purposes. The adoptive parents take on all the rights and obligations the birth parents had, and, at the same time, the birth parent or parents lose all the rights and obligations they had in relation to the child.

Among other things, the natural parent will lose rights such as being kept up to speed on developments in the child's health and schooling, and obligations such as a duty to pay child support. In a 2003 case of the Supreme Court, ''[http://canlii.ca/t/1pt0x Zien v. Woda]'', 2003 BCSC 1238 the court held that the adoption of a child by the mother's new partner stripped the natural father of his obligation to pay support, effective from the moment the adoption order was made.

From the time an adoption order is made, the birth parent has no more legal interest in the adopted child, including how the child is raised, where the child lives, where the child goes to school, what sort of medical treatment he or she receives, or how the child is disciplined. In the eyes of the law, the adoptive parents are the only parents the child has.

===Who can place a child for adoption===

Section 4 of the ''[http://canlii.ca/t/84g5 Adoption Act]'' says that:

<blockquote><tt>The following may place a child for adoption:</tt></blockquote>
<blockquote><blockquote><tt>(a) the director;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) an adoption agency;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a birth parent or other guardian of the child, by direct placement in accordance with this Part;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) a birth parent or other guardian related to the child, if the child is placed with a relative of the child.</tt></blockquote></blockquote>

===Who can receive a child for adoption===

Section 5 of the ''[http://canlii.ca/t/84g5 Adoption Act]'' says that a child can be placed for adoption with one or two people, as long as they live in the province.

<blockquote><tt>(1) A child may be placed for adoption with one adult or 2 adults jointly.</tt></blockquote>
<blockquote><tt>(2) Each prospective adoptive parent must be a resident of British Columbia</tt></blockquote>

Section 29 says that one or two people can make an application to adopt a child, as long as they live in the province:

<blockquote><tt>(1) One adult alone or 2 adults jointly may apply to the court to adopt a child in accordance with this Act.</tt></blockquote>
<blockquote><tt>(2) One adult may apply to the court to jointly become a parent of a child with a birth parent of the child.</tt></blockquote>
<blockquote><tt>(3) Each applicant must be a resident of British Columbia.</tt></blockquote>

The ''[http://canlii.ca/t/84g5 Adoption Act]'' doesn't say anything about the gender or sexual orientation of the adopting parents. There have in fact been many cases where same-sex couples have successfully adopted children in British Columbia; the sexual orientation of the adopting parents is not an issue in this province.

===Who must consent to the adoption===

According to s. 13 of the ''[http://canlii.ca/t/84g5 Adoption Act]'' , the following people must provide their consent to a proposed adoption:

#the birth mother of the child,
#the natural father,
#the child's guardian, if someone has been appointed to fill this role,
#the child, if the child is 12 years of age or older, and
#the Director under the ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]'', but only if the child is in the care and custody of the government.

The act also says that a birth mother's consent to the adoption is only valid if she gives it 10 or more days after the child's birth. The act also provides that a parent under the age of 19 may give a valid consent.

===Revoking consent===

The people who must give their consent can, if they choose, change their mind and revoke their consent, but only within certain time periods or before certain events happen.

*A birth mother may revoke her consent at any time until the child is 30 days old, or, afterwards at any time until the child is placed with the adoptive parents.
*A child can revoke his or her consent at any time until the adoption order is made.

After the child is placed, a consent can only be revoked after an application to the court, providing the application is made before the adoption order is pronounced.

==The private adoption process==

This discussion concerns the two types of adoptions that do not go through the Ministry or an adoption agency: the direct placement process and the relative adoption process.

===Direct placement by a birth parent===

Firstly, the adoptive parents must notify the Director of the [http://www.mcf.gov.bc.ca/adoption/index.htm Ministry for Children and Family Development's Adoption Division] of their intent to adopt a child by filing with the ministry Form 1 of the ''[http://canlii.ca/t/859w Adoption Act Regulation]''. This form sets out: the name of the birth mother; the name of the natural father, if known; an explanation of the circumstances leading to the proposed adoption; and, the names of the adoptive parents.

The Director then contacts both the adoptive parents and the natural parents of the child and advises them of the legal consequences of adoption, prepares a ''pre-placement assessment'' of the adoptive parents, and provides the adoptive parents with information about the child's natural parents, including their medical history.

A pre-placement assessment includes a criminal records check of the adoptive parents, a check for past involvement with the ministry, an assessment of the birth mother and father, and an assessment of the suitability of the adoptive parents and their home to receive a new child.

The adoptive parents must obtain the consent of the following people to the adoption:

*the child, if the child is 12 years of age or older,
*the birth mother,
*the child's natural father, if known, and
*the child's guardian, if anyone has been appointed as such.

The ''[http://canlii.ca/t/84g5 Adoption Act]'' requires adoptive parents to make "reasonable efforts" to notify the father of the intended adoption. If the father's whereabouts are known, the adoptive parents should send a Notice of Proposed Adoption to the father by registered mail. The court may require that an ad be placed in the Legal Notices section of the newspaper classified ads to ensure that every effort has been made to find the father and alert him to the adoption. Under certain circumstances, it is possible to obtain an order that this requirement be disregarded.

Once the consent of the birth parent or guardian of the child has been obtained, the adoptive parents and the birth parent or guardian become joint guardians of the child. This joint guardianship will last until:

*the court makes an adoption order,
*any of the consents to the adoption are revoked, or
*the court otherwise terminates the joint guardianship.

Once these conditions have been met, the birth parent or guardian of the child will transfer the custody of the child to the adoptive parents in writing. The adoptive parents must notify the Director that they have received the adoptive child into their home within 14 days. The Director must prepare a "post-placement report" within six months of the placement of the child in the new home.

Finally, the adoptive parents must prepare and file a Petition for the adoption of the child in the registry of the Supreme Court, under the [http://canlii.ca/t/8mcr Supreme Court Family Rules], once the child has spent six months in their care and custody. The filed Petition and supporting documents must be served on the Director. Part 3 of the ''[http://canlii.ca/t/84g5 Adoption Act]'' provides the details of the court process that will occur after this point, including: the documents which must be filed in court, who must be notified of the proceeding, and whether the application will require an oral hearing before a judge.

===Relative adoption===

The process for relative adoptions is a lot easier, mostly because the ''[http://canlii.ca/t/84g5 Adoption Act]'' exempts this sort of adoption from the notice requirements for direct placement adoptions. This means that the portion of the process described above, involving the Ministry and the Director of the Adoptions Division, can be bypassed, and no assessments or reports are required from the Director.

Stepparents may apply under this process for an order that they become "jointly" a parent of the child with his or her birth parent, usually the stepparent's spouse, the natural parent of the child. This is another form of relative adoption, and has the same effect as a normal adoption, meaning that the other natural parent (the one who isn't married to the step-parent) of the child loses his or her rights and obligations in relation to the child.

==Adoption through the Ministry==

People who seek to adopt through the Ministry for Children and Family Development usually do so because they wish to adopt a child but don't have any particular child in mind, as is the case in direct placements or relative adoptions.

The first step in this process is to contact the Adoptive Families Association of British Columbia and speak with an adoption worker. The worker will arrange a meeting with the adopting parents, who will have to fill out an adoption application and an adoption questionnaire. The questionnaire asks the adopting parents about the sorts of children they are prepared to adopt, including racial characteristics, illnesses, mental and physical disabilities, and so forth. The application asks for the following information:

*the name, address, education and present employment of each applicant,
*the work history of each applicant,
*the cultural and racial background, and religion or belief system of each applicant,
*the applicants' interests and hobbies,
*the names of other children and other members of the applicants' household, including boarders,
*a statement of the family finances, and
*the names and addresses of four personal references.

You can download the [http://www.mcf.gov.bc.ca/adoption/pdf/cf_1013.pdf application] and [http://www.mcf.gov.bc.ca/adoption/pdf/cf_1048.pdf questionnaire] at the [http://www.mcf.gov.bc.ca/adoption/index.htm Ministry's website], and read a helpful summary of the process. A more succinct summary is available at the [http://www.bcadoption.com Adoptive Families Association of BC website].

The ministry will also conduct a criminal records check and check for any past contact with the ministry involving child- and family-related problems.

The worker will then begin a ''homestudy''. A homestudy is an assessment of the applicants completed over several months through visits to their home. It includes an educational component which prepares the adopting parents to meet the needs of the adopted child.

Once the homestudy is complete, the adoption worker begins the process of matching available children to adopting parents. Once a match is found and the adopting parents accept the child, they begin pre-placement visits with the child. (If the child lives in a different community, the adopting parents will be asked to visit the child in his or her community.) For these first visits, a worker will be present. Over time, the adopting parents will begin to spend time alone with the child and have visits at their own home. If things go well, the adoption worker will make a decision about the suitability of the placement based on what he or she considers to be in the child's best interests.

The steps between the initial application and the match are not particularly quick. In recognition of this, be prepared for homestudies to be repeated every 12 months. Criminal records checks and checks for previous ministry involvement are conducted every two years.

Finally, if all parties are satisfied, the child is placed in the home of the adopting parents. At this point the adopting parents will fill out the Notice of Placement described above. After six months of the child living in the care and custody of the adopting parents, the parents can begin the process of applying to the Supreme Court for an adoption order. You should be aware that during the whole of this period, and until an adoption order is made, the Director remains the legal guardian of the child.

Note that if the child is between the ages of seven and 12, an independent worker will meet with him or her to do a report on the child's views of the proposed adoption. This report will form part of the materials that the court will consider in hearing the adoption application. A child over the age of 12 must consent to the adoption.

==Adoption agencies==

The following four organizations are licensed by the provincial government under the Adoption Act to operate as adoption agencies. These are ''all'' of the licensed agencies in British Columbia.

<blockquote>'''[http://www.choicesadoption.ca/home/index.php Choices Adoption & Counselling Services]''' 
100-850 Blanshard Street 
Victoria, British Columbia, V8W 2H2 
Phone: 250-479-9811 
Fax: 250-479-9850 
Toll Free: 1-888-479-9811</blockquote>

<blockquote>'''[http://www.fsgv.ca/ Family Services of Greater Vancouver]''' 
205-1600 West 6th Avenue 
Vancouver, British Columbia, V6J 1R3 
Phone: 604-736-7613 
Fax: 604-736-7916 
Toll Free: 1-866-582-3678</blockquote>

<blockquote>'''[http://www.sunriseadoption.com/ Sunrise Adoption Centre]''' 
102-171 West Esplanade 
North Vancouver, British Columbia, V7M 3J9 
Phone: 604-984-2488 
Fax: 604-984-2498 
Toll Free: 1-888-984-2488</blockquote>

<blockquote>'''[http://kcr.ca/adoption-services/the-adoption-centre-of-british-columbia/ The Adoption Centre of British Columbia]''' 
255 Lawrence Avenue 
Kelowna, British Columbia, V1Y 6L2 
Phone: 250-763-8002 
Fax: (250) 763-6282 
Toll Free: 1-800-935-4237</blockquote>



==Resources and links==

===Legislation===

* [http://canlii.ca/t/84g5 ''Adoption Act'']
* ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]''
* ''[http://canlii.ca/t/859w Adoption Act Regulation]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]

===Documents===

* [http://www.mcf.gov.bc.ca/adoption/pdf/cf_1013.pdf Application to Adopt]
* [http://www.mcf.gov.bc.ca/adoption/pdf/cf_1048.pdf Adoption Questionnaire]

===Links===

* [http://www.gov.bc.ca/mcf/ Ministry of Children and Family Development Website]
* [http://www.bcadoption.com/ Adoptive Families Association of British Columbia]
* [http://www.mcf.gov.bc.ca/adoption/index.htm Ministry of Children and Family Development Adoption Division]
* [http://www.choicesadoption.ca/home/index.php Choices Adoption & Counselling Services]
* [http://www.fsgv.ca/ Family Services of Greater Vancouver]
* [http://www.sunriseadoption.com/ Sunrise Adoption Centre]
* [http://kcr.ca/adoption-services/the-adoption-centre-of-british-columbia/ The Adoption Centre of British Columbia]

{{REVIEWED | reviewer = [[JP Boyd]], March 24, 2013}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

Adopting Children

2013-05-05T22:31:45Z

Gayla Reid:

{{JP Boyd on Family Law TOC|expanded = other}}

Adoption is the voluntary creation of a brand new parent-child relationship where there wasn't one before. When an adoption order is made, the adoptive parents take on all of the rights, duties, obligations and liabilities of a parent of the child.

At the same time, however, one or both of the child's natural parents are stripped of those rights, duties, obligations and liabilities as if they are and always have been strangers to the child.

This section provides an overview of adoption, describes the private adoption process and the process for adopting through the [http://www.gov.bc.ca/mcf/ Ministry for Children and Family Development], and provides contact information for the four adoption agencies licensed in British Columbia.

==Introduction==

There are two basic types of adoption: adoption within a family unit by a relative or stepparent with the consent of the natural parent; and, adoption by a stranger through an agency.

The first kind can be handled privately through the court process.

The second kind requires either the involvement of the [http://www.bcadoption.com Adoptive Families Association of British Columbia], a contractor of the provincial Ministry for Children and Family Development, in the case of children in the care of the government, or the use of licensed adoption agency in the case of children not in government care. A list of the four adoption agencies licensed in British Columbia is provided at the end of this section.

The provincial ''[http://canlii.ca/t/84g5 Adoption Act]'' sets out the rules that guide parents and the courts through the adoption process. As in all matters involving children, the courts are primarily concerned with the best interests of the child, and s. 3 of the act sets a number of factors that should be considered in determining what is in the child's best interests.

<blockquote><tt>(1) All relevant factors must be considered in determining the child's best interests, including for example:</tt></blockquote>
<blockquote><blockquote><tt>(a) the child's safety;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the child's physical and emotional needs and level of development;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the importance of continuity in the child's care;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the importance to the child's development of having a positive relationship with a parent and a secure place as a member of a family;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the quality of the relationship the child has with a birth parent or other individual and the effect of maintaining that relationship;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(f) the child's cultural, racial, linguistic and religious heritage;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) the child's views;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) the effect on the child if there is delay in making a decision.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the child is an aboriginal child, the importance of preserving the child's cultural identity must be considered in determining the child's best interests.</tt></blockquote>

The ''[http://canlii.ca/t/84g5 Adoption Act]'' recognizes four types of adoption:

#relative adoption, where a child is adopted by a relative or stepparent,
#placement of a child by the child's natural parent or guardian with a non-family member adoptive parent or parents, called a direct placement,
#placement of a child by the Ministry for Children and Family Development, actually through the Ministry's contractor, and
#placement of a child, sometimes from outside Canada, by an adoption agency licensed by the Ministry.

===The effect of adoption===

Section 37 of the ''[http://canlii.ca/t/84g5 Adoption Act]'' sets out the consequences and meaning of an adoption and says:

<blockquote><tt>(1) When an adoption order is made,</tt></blockquote>
<blockquote><blockquote><tt>(a) the child becomes the child of the adoptive parent,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the adoptive parent becomes the parent of the child, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the birth parents cease to have any parental rights or obligations with respect to the child, except a birth parent who remains under subsection (2) a parent jointly with the adoptive parent.</tt></blockquote></blockquote>
<blockquote><tt>(2) If the application for the adoption order was made by an adult to become a parent jointly with a birth parent of the child, then, for all purposes when the adoption order is made,</tt></blockquote>
<blockquote><blockquote><tt>(a) the adult joins the birth parent as parent of the child, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the child's other birth parent ceases to have any parental rights or obligations with respect to the child.</tt></blockquote></blockquote>

In other words, an adopted child's new parents become that child's parents for all possible reasons and purposes. The adoptive parents take on all the rights and obligations the birth parents had, and, at the same time, the birth parent or parents lose all the rights and obligations they had in relation to the child.

Among other things, the natural parent will lose rights such as being kept up to speed on developments in the child's health and schooling, and obligations such as a duty to pay child support. In a 2003 case of the Supreme Court, ''[http://canlii.ca/t/1pt0x Zien v. Woda]'', 2003 BCSC 1238 the court held that the adoption of a child by the mother's new partner stripped the natural father of his obligation to pay support, effective from the moment the adoption order was made.

From the time an adoption order is made, the birth parent has no more legal interest the adopted child, including how the child is raised, where the child lives, where the child goes to school, what sort of medical treatment he or she receives, or how the child is disciplined. In the eyes of the law, the adoptive parents are the only parents the child has.

===Who can place a child for adoption===

Section 4 of the ''[http://canlii.ca/t/84g5 Adoption Act]'' says that:

<blockquote><tt>The following may place a child for adoption:</tt></blockquote>
<blockquote><blockquote><tt>(a) the director;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) an adoption agency;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a birth parent or other guardian of the child, by direct placement in accordance with this Part;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) a birth parent or other guardian related to the child, if the child is placed with a relative of the child.</tt></blockquote></blockquote>

===Who can receive a child for adoption===

Section 5 of the ''[http://canlii.ca/t/84g5 Adoption Act]'' says that a child can be placed for adoption with one or two people, as long as they live in the province.

<blockquote><tt>(1) A child may be placed for adoption with one adult or 2 adults jointly.</tt></blockquote>
<blockquote><tt>(2) Each prospective adoptive parent must be a resident of British Columbia</tt></blockquote>

Section 29 says that one or two people can make an application to adopt a child, as long as they live in the province:

<blockquote><tt>(1) One adult alone or 2 adults jointly may apply to the court to adopt a child in accordance with this Act.</tt></blockquote>
<blockquote><tt>(2) One adult may apply to the court to jointly become a parent of a child with a birth parent of the child.</tt></blockquote>
<blockquote><tt>(3) Each applicant must be a resident of British Columbia.</tt></blockquote>

The ''[http://canlii.ca/t/84g5 Adoption Act]'' doesn't say anything about the gender or sexual orientation of the adopting parents. There have in fact been many cases where same-sex couples have successfully adopted children in British Columbia; the sexual orientation of the adopting parents is not an issue in this province.

===Who must consent to the adoption===

According to s. 13 of the ''[http://canlii.ca/t/84g5 Adoption Act]'' , the following people must provide their consent to a proposed adoption:

#the birth mother of the child,
#the natural father,
#the child's guardian, if someone has been appointed to fill this role,
#the child, if the child is 12 years of age or older, and
#the Director under the ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]'', but only if the child is in the care and custody of the government.

The act also says that a birth mother's consent to the adoption is only valid if she gives it 10 or more days after the child's birth. The act also provides that a parent under the age of 19 may give a valid consent.

===Revoking consent===

The people who must give their consent can, if they choose, change their mind and revoke their consent, but only within certain time periods or before certain events happen.

*A birth mother may revoke her consent at any time until the child is 30 days old, or, afterwards at any time until the child is placed with the adoptive parents.
*A child can revoke his or her consent at any time until the adoption order is made.

After the child is placed, a consent can only be revoked after an application to the court, providing the application is made before the adoption order is pronounced.

==The private adoption process==

This discussion concerns the two types of adoptions that do not go through the Ministry or an adoption agency: the direct placement process and the relative adoption process.

===Direct placement by a birth parent===

Firstly, the adoptive parents must notify the Director of the [http://www.mcf.gov.bc.ca/adoption/index.htm Ministry for Children and Family Development's Adoption Division] of their intent to adopt a child by filing with the ministry Form 1 of the ''[http://canlii.ca/t/859w Adoption Act Regulation]''. This form sets out: the name of the birth mother; the name of the natural father, if known; an explanation of the circumstances leading to the proposed adoption; and, the names of the adoptive parents.

The Director then contacts both the adoptive parents and the natural parents of the child and advises them of the legal consequences of adoption, prepares a ''pre-placement assessment'' of the adoptive parents, and provides the adoptive parents with information about the child's natural parents, including their medical history.

A pre-placement assessment includes a criminal records check of the adoptive parents, a check for past involvement with the ministry, an assessment of the birth mother and father, and an assessment of the suitability of the adoptive parents and their home to receive a new child.

The adoptive parents must obtain the consent of the following people to the adoption:

*the child, if the child is 12 years of age or older,
*the birth mother,
*the child's natural father, if known, and
*the child's guardian, if anyone has been appointed as such.

The ''[http://canlii.ca/t/84g5 Adoption Act]'' requires adoptive parents to make "reasonable efforts" to notify the father of the intended adoption. If the father's whereabouts are known, the adoptive parents should send a Notice of Proposed Adoption to the father by registered mail. The court may require that an ad be placed in the Legal Notices section of the newspaper classified ads to ensure that every effort has been made to find the father and alert him to the adoption. Under certain circumstances, it is possible to obtain an order that this requirement be disregarded.

Once the consent of the birth parent or guardian of the child has been obtained, the adoptive parents and the birth parent or guardian become joint guardians of the child. This joint guardianship will last until:

*the court makes an adoption order,
*any of the consents to the adoption are revoked, or
*the court otherwise terminates the joint guardianship.

Once these conditions have been met, the birth parent or guardian of the child will transfer the custody of the child to the adoptive parents in writing. The adoptive parents must notify the Director that they have received the adoptive child into their home within 14 days. The Director must prepare a "post-placement report" within six months of the placement of the child in the new home.

Finally, the adoptive parents must prepare and file a Petition for the adoption of the child in the registry of the Supreme Court, under the [http://canlii.ca/t/8mcr Supreme Court Family Rules], once the child has spent six months in their care and custody. The filed Petition and supporting documents must be served on the Director. Part 3 of the ''[http://canlii.ca/t/84g5 Adoption Act]'' provides the details of the court process that will occur after this point, including: the documents which must be filed in court, who must be notified of the proceeding, and whether the application will require an oral hearing before a judge.

===Relative adoption===

The process for relative adoptions is a lot easier, mostly because the ''[http://canlii.ca/t/84g5 Adoption Act]'' exempts this sort of adoption from the notice requirements for direct placement adoptions. This means that the portion of the process described above, involving the Ministry and the Director of the Adoptions Division, can be bypassed, and no assessments or reports are required from the Director.

Stepparents may apply under this process for an order that they become "jointly" a parent of the child with his or her birth parent, usually the stepparent's spouse, the natural parent of the child. This is another form of relative adoption, and has the same effect as a normal adoption, meaning that the other natural parent (the one who isn't married to the step-parent) of the child loses his or her rights and obligations in relation to the child.

==Adoption through the Ministry==

People who seek to adopt through the Ministry for Children and Family Development usually do so because they wish to adopt a child but don't have any particular child in mind, as is the case in direct placements or relative adoptions.

The first step in this process is to contact the Adoptive Families Association of British Columbia and speak with an adoption worker. The worker will arrange a meeting with the adopting parents, who will have to fill out an adoption application and an adoption questionnaire. The questionnaire asks the adopting parents about the sorts of children they are prepared to adopt, including racial characteristics, illnesses, mental and physical disabilities, and so forth. The application asks for the following information:

*the name, address, education and present employment of each applicant,
*the work history of each applicant,
*the cultural and racial background, and religion or belief system of each applicant,
*the applicants' interests and hobbies,
*the names of other children and other members of the applicants' household, including boarders,
*a statement of the family finances, and
*the names and addresses of four personal references.

You can download the [http://www.mcf.gov.bc.ca/adoption/pdf/cf_1013.pdf application] and [http://www.mcf.gov.bc.ca/adoption/pdf/cf_1048.pdf questionnaire] at the [http://www.mcf.gov.bc.ca/adoption/index.htm Ministry's website], and read a helpful summary of the process. A more succinct summary is available at the [http://www.bcadoption.com Adoptive Families Association of BC website].

The ministry will also conduct a criminal records check and check for any past contact with the ministry involving child- and family-related problems.

The worker will then begin a ''homestudy''. A homestudy is an assessment of the applicants completed over several months through visits to their home. It includes an educational component which prepares the adopting parents to meet the needs of the adopted child.

Once the homestudy is complete, the adoption worker begins the process of matching available children to adopting parents. Once a match is found and the adopting parents accept the child, they begin pre-placement visits with the child. (If the child lives in a different community, the adopting parents will be asked to visit the child in his or her community.) For these first visits, a worker will be present. Over time, the adopting parents will begin to spend time alone with the child and have visits at their own home. If things go well, the adoption worker will make a decision about the suitability of the placement based on what he or she considers to be in the child's best interests.

The steps between the initial application and the match are not particularly quick. In recognition of this, be prepared for homestudies to be repeated every 12 months. Criminal records checks and checks for previous ministry involvement are conducted every two years.

Finally, if all parties are satisfied, the child is placed in the home of the adopting parents. At this point the adopting parents will fill out the Notice of Placement described above. After six months of the child living in the care and custody of the adopting parents, the parents can begin the process of applying to the Supreme Court for an adoption order. You should be aware that during the whole of this period, and until an adoption order is made, the Director remains the legal guardian of the child.

Note that if the child is between the ages of seven and 12, an independent worker will meet with him or her to do a report on the child's views of the proposed adoption. This report will form part of the materials that the court will consider in hearing the adoption application. A child over the age of 12 must consent to the adoption.

==Adoption agencies==

The following four organizations are licensed by the provincial government under the Adoption Act to operate as adoption agencies. These are ''all'' of the licensed agencies in British Columbia.

<blockquote>'''[http://www.choicesadoption.ca/home/index.php Choices Adoption & Counselling Services]''' 
100-850 Blanshard Street 
Victoria, British Columbia, V8W 2H2 
Phone: 250-479-9811 
Fax: 250-479-9850 
Toll Free: 1-888-479-9811</blockquote>

<blockquote>'''[http://www.fsgv.ca/ Family Services of Greater Vancouver]''' 
205-1600 West 6th Avenue 
Vancouver, British Columbia, V6J 1R3 
Phone: 604-736-7613 
Fax: 604-736-7916 
Toll Free: 1-866-582-3678</blockquote>

<blockquote>'''[http://www.sunriseadoption.com/ Sunrise Adoption Centre]''' 
102-171 West Esplanade 
North Vancouver, British Columbia, V7M 3J9 
Phone: 604-984-2488 
Fax: 604-984-2498 
Toll Free: 1-888-984-2488</blockquote>

<blockquote>'''[http://kcr.ca/adoption-services/the-adoption-centre-of-british-columbia/ The Adoption Centre of British Columbia]''' 
255 Lawrence Avenue 
Kelowna, British Columbia, V1Y 6L2 
Phone: 250-763-8002 
Fax: (250) 763-6282 
Toll Free: 1-800-935-4237</blockquote>



==Resources and links==

===Legislation===

* [http://canlii.ca/t/84g5 ''Adoption Act'']
* ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]''
* ''[http://canlii.ca/t/859w Adoption Act Regulation]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]

===Documents===

* [http://www.mcf.gov.bc.ca/adoption/pdf/cf_1013.pdf Application to Adopt]
* [http://www.mcf.gov.bc.ca/adoption/pdf/cf_1048.pdf Adoption Questionnaire]

===Links===

* [http://www.gov.bc.ca/mcf/ Ministry of Children and Family Development Website]
* [http://www.bcadoption.com/ Adoptive Families Association of British Columbia]
* [http://www.mcf.gov.bc.ca/adoption/index.htm Ministry of Children and Family Development Adoption Division]
* [http://www.choicesadoption.ca/home/index.php Choices Adoption & Counselling Services]
* [http://www.fsgv.ca/ Family Services of Greater Vancouver]
* [http://www.sunriseadoption.com/ Sunrise Adoption Centre]
* [http://kcr.ca/adoption-services/the-adoption-centre-of-british-columbia/ The Adoption Centre of British Columbia]

{{REVIEWED | reviewer = [[JP Boyd]], March 24, 2013}}

{{JP Boyd on Family Law Navbox|type=chapters}}

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Further Topics and Overlapping Legal Issues in Family Law

2013-05-05T22:25:33Z

Gayla Reid: /* Sponsoring spouses */

{{JP Boyd on Family Law TOC|expanded = other}}

Problems like children's parenting arrangements, support, and the division of property are the everyday issues that crop up when a relationship breaks down. There is a whole host of other legal issues that fall under the family law umbrella, and it's a big umbrella.

This chapter deals with the more common of these other issues, including [[Adoption|adoption]], [[Family Violence|family violence and protection orders]], [[Parentage and Assisted Reproduction|determining parentage]], [[Naming and Changes of Name|changing names]], and more.

This first section is a bit of a grab bag and takes a look at a selection of relatively common family law problems. It talks about issues affecting the LGBT communities, wills and estates law, immigration law, parental support, and what happens when people and property are located in different legal jurisdictions.

==Same-sex relationships==

Not too long ago, this wiki had an entire chapter about the particular issues affecting those in same-sex relationships. That chapter, however, is no longer necessary. For the last 30 years or so, there has been a steady erosion of legislated discrimination between opposite- and same-sex relationships. While gays and lesbians may have to deal with homophobia and intolerance in their day-to-day lives, at least the discrimination that used to exist by the operation of law has been on the wane. From the [http://canlii.ca/t/5239 Little Sisters decision] on censorship to ''[http://canlii.ca/t/1frkt Egan v. Canada]'', [1995] 2 SCR 513, on spousal benefits, the courts of Canada have proven increasingly willing to extend the protection of the ''[http://canlii.ca/t/8q7l Charter of Rights and Freedoms]'' to overturn discriminatory legislation and, after some initial resistance, the governments of Canada have followed suit.

The realm of family law has proven no exception. To quote barbara findlay QC, a tireless advocate for queer rights, from a speech to the [http://www.cba.org/bc/home/main/ Canadian Bar Association British Columbia] a number of years ago:

<blockquote>"Gays and lesbians in British Columbia now have exactly the same rights and obligations towards one another as straight people do. Exactly the same. Full stop."</blockquote>

She is entirely correct. As far as the provincial statutes of British Columbia are concerned, and indeed the vast majority of federal statutes as well, there is equality. The Court of Appeal for British Columbia was among the first of Canada's appellate courts to acknowledge that restricting the right to marry to straight couples alone was an egregious breach of the equality rights of gays and lesbians, and our provincial ''[http://canlii.ca/t/84g5 Adoption Act]'' is one of the few in Canada that permit adoption by same-sex couples.

Gays and lesbians are equally entitled to pursue claims relating to the care of children, child support, spousal support, and the division of property as straight people are. Sexual orientation plays no part in the division of family property, nor is it a factor in determining issues relating to children or support.

How does family law intersect with gay and lesbian relationships? In every way. There is no relief known to family law of which straight couples can avail themselves that same-sex couples cannot.

===Marriage===

As a result of the 2005 federal ''[http://canlii.ca/t/7w02 Civil Marriage Act]'', same-sex couples can legally marry throughout Canada. Of course, not everyone can marry, such as close relatives or minors under a certain age. See the [[Married Spouses]] section of the [[Family Relationships]] chapter for more information about the capacity to marry, valid marriages and invalid marriages.

It's not just Canadian couples who can marry. Anyone from anywhere can get married in Canada, as long as they meet the Canadian criteria for a valid marriage. However, while a Canadian marriage is certainly legal in Canada, it may not be recognized as a valid marriage at home. If a couple's home country does not recognize same-sex marriages as valid marriages, the Canadian marriage is unlikely to be valid in that country.

===Children===

Whether the battle over a child is between two parents of the same gender or between parents of opposite genders, the legal test that the parents and the court should consider is the same: what arrangements are in the child's best interests? That is the only concern. The courts have been crystal clear that the sexual orientation of the parents is only one of many factors to be considered and is often a non-issue. This is what a few judges have had to say:

''[http://canlii.ca/t/1f6rk Anger v. Anger]'', 1998 CanLII 4490 (BCSC):

<blockquote>Mother sought an order that the children live primarily with her. Father opposed application as he found mother's sexual orientation "repugnant on religious and moral grounds." Court finding father doing everything he could to cut mother out of children's lives, and accepting psychologist's recommendation that children should live with mother. Mother's application allowed. No weight given to mother's sexual orientation.</blockquote>

''Murphy v. Laurence and Rogers'', Ontario Superior Court, 2002:

<blockquote>Applications by biological mother and mother's lesbian partner for custody and child support. Parties had three year common-law relationship in which mother remained at home and partner worked outside the home. Both acted as parents to child, and following separation, partner exercised liberal access to child. Child later, by agreement, going to live mostly with partner. Court finding child to have benefited from care of both women, and ordering joint custody with primary residence of child to mother based on blood tie. Negligible access given to father in light of history of disinterest in child. No weight given to mother's sexual orientation.</blockquote>
<blockquote>"The best interests of [the child] are, of course, what will govern any decision relating to custody in this matter. In this fundamental principle, same-sex parents seeking custody are no different than opposite-sex parents seeking custody."</blockquote>

''[http://canlii.ca/t/1w5d8 Bubis v. Jones]'', 2000 CanLII 22571 (ONSC):

<blockquote>Application by mother for vary order to obtain custody. Mother in lesbian relationship following separation from father. Court finding father prejudiced against lesbians, that same-sex preference of parent merely one of many factors to be considered, and in light of positive psychologist's report and change in mother's employment and stability, giving custody to mother.</blockquote>
<blockquote>"Homophobia is being replaced by reason and bigotry by tolerance — but not completely, since history tells us that, in matters of this nature, there will always be pockets of prejudice."</blockquote>
<blockquote>"There is no evidence that families with heterosexual parents are better able to meet the physical, psychological, emotional or intellectual needs of children than are families with homosexual parents."</blockquote>

===Child support===

Whether you are straight, gay, lesbian, bisexual, or something in between, if you qualify as a ''parent'' for the purposes of the ''[[Family Law Act]]'', or the child qualifies as a ''child of the marriage'' for the purposes of the ''[[Divorce Act]]'', child support will be payable by the person who has the child for the least amount of time to the person who has the child for the most amount of time. Child support will be payable at the amount specified under the [[Child Support Guidelines]] unless the parent paying support (the "payor") fits into one of a very narrow range of exceptions:

*the payment of support in the usual amount would cause "undue hardship,"
*the person paying child support, the ''payor'', is responsible for the care and control of the child for more than 40% of the child's time,
*the payor earns more than $150,000 per year, and payment of the table amount would result in an unfair windfall to the recipient, or
*other persons are also under a legal obligation to care for the child.

The only one of these exceptions that has any special relevance to same-sex couples is the last: where another person is also under an obligation to support the child. Assuming there is another parent in the picture apart from the other party to the relationship, that other parent will also be obliged to contribute to the support of the child. In ''Murphy v. Laurence and Rogers'', the biological mother of a child was entitled to receive child support from both her former lesbian partner and the child's father.

===Divorce===

The ''[[Divorce Act]]'' no longer requires spouses to be of opposite genders to qualify for a divorce order. Oh happy day.

==Issues affecting transgendered & transsexual people==

To be brutally frank, the jury is still out on how family law impacts on the trans community. Right now, the laws have slipped into a comfortable understanding of "the same or opposite genders" and only accommodates people on the spectrum in between with difficulty. While bisexuality is as close to a non-issue in this context as there can be, transgendered and transsexual people may well encounter difficulty in dealing with family law matters. This discussion offers only a gloss on some of the issues affecting this community.

If you have a family law problem and your orientation, gender or identity becomes an issue, contact a lawyer known to be sympathetic or activist on the issue, such as barbara findlay or another lawyer she can refer you to.

===Marriage===

As a result of the 2005 federal ''Civil Marriage Act'', gender is irrelevant in determining the ability of a couple to marry.

===Children===

Those who have discovered another self-identity during a relationship may find their new identities hotly at issue in the event that the living arrangements for any children must be decided in court. The problem here is that while shows like Will and Grace, The Birdcage and The L Word have made homosexuality something commonly understood and empathized with, nothing similar has popularized and explained the experience of the trans community.

It can be very difficult for people, including ex-partners, to understand trans issues, and this problem is especially acute in courtroom discussions about the care and control of children. Often the most important task is to demystify the person's self-identity and explain why his or her self-identity has no impact at all on his or her ability to parent, nor on the expected outcomes for the children.

On the bright side, the single reported case I was able to find in researching transgendered and transsexual family law issues dealt fairly positively with the subject. (This research is a few years old.) In ''[http://canlii.ca/t/fvzvc Forrester v. Saliba]'', 2000 CanLII 28722 ONCJ, a 2000 decision of the Ontario Court of Justice, the father of the child had begun the process of transitioning to female following the pronouncement of a consent order which provided that the parents would have joint custody of the child. The mother brought an application to vary the order to obtain sole custody of the child based on the stress and depression that affected the parents since the commencement of the transitioning process. Here are some interesting excerpts from the decision:

<blockquote>"I indicated at the beginning of the trial to both parties and their counsel that the [father's] transsexuality, in itself, without further evidence, would not constitute a material change in circumstances [necessary to consider varying a consent order], nor would it be considered a negative factor in a custody determination."</blockquote>
<blockquote>"The entire focus of this trial has been upon the consequences of the [father's] transgendering, the mental health issues that have arisen as a result of the [father's] transgendering process, and the [mother's] mental health issues. The evidence discloses that throughout all these problems suffered by the parties, the child Christine has remained happy and healthy and continues to enjoy a positive relationship with both parties. ... It appears from the evidence that Christine is a very well-adjusted, happy, healthy little girl, who in her own way has been able to accept the changes in her father and continues to enjoy a healthy relationship with her father, now a woman psychologically, as a person and a loving and caring human being."</blockquote>

The mother's application was dismissed.

===Child support===

Trans issues have no impact at all on the determination of child support. If you are a parent or qualify as a stepparent within the meaning of the applicable legislation, child support will be payable or receivable. End of story.

===Spousal support===

The simple fact of financial dependence, which would ordinarily have to be established to support a claim to spousal support, should be sufficient to prove an entitlement to support. If, however, the cause of the dependence or inability to be independent relates to or stems from the trans issue, be prepared to face some resistance. The problem will lie in establishing the legitimacy of the financial dependency arising from the trans issue; in other words, the problem will lie in convincing the judge dealing with the matter, if the matter has to go to court, that the issue you are dealing with isn't one of choice or a voluntary financial dependence.

===Divorce===

The ''[[Divorce Act]]'' no longer requires spouses to be of opposite genders, whether at the end of their marriage or at the beginning of it, to qualify for a divorce order.

==Wills and estates issues==

''Wills and estates'' refers to the area of law that deals with the drafting and interpretation of wills, how a dead person's estate is distributed when there is a valid will, how a dead person's estate is distributed when there isn't a valid will, and how certain relatives can challenge a dead person's will. In family law, issues concerning a person's will usually only come up when a couple have separated or are getting a divorce.

Making, changing, revoking, and enforcing wills are governed by the provincial ''[http://canlii.ca/t/84fx Wills Act]''. Sections 3 and 4 set out the basic requirements for a valid will:

<blockquote><tt>3 A will is valid only if it is in writing.</tt></blockquote>
<blockquote><tt>4 Subject to section 5, a will is not valid unless</tt></blockquote>
<blockquote><blockquote><tt>(a) at its end it is signed by the testator or signed in the testator's name by some other person in the testator's presence and by the testator's direction,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the testator makes or acknowledges the signature in the presence of 2 or more attesting witnesses present at the same time, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) 2 or more of the attesting witnesses subscribe the will in the presence of the testator.</tt></blockquote></blockquote>

The provincial ''[http://canlii.ca/t/84g0 Wills Variation Act]'' says that people are presumed to have a moral duty to provide for members of their immediate family. Under this act, spouses and children who have not been provided for in a will are able to challenge the will and ask the court that they be included and receive a share, or a bigger share, of the dead person's estate.

A person who dies without leaving a will is said to die ''intestate''. If a person dies intestate, their assets are dealt with according to the terms of the provincial ''[http://canlii.ca/t/840g Estate Administration Act]''. This law requires a person's estate to be distributed in a certain way, with the surviving spouse receiving a first, fixed share of the estate, and the remainder being split with any surviving children.

===Married spouses===

The law treats married spouses differently than unmarried couples, and it's important to be aware of the distinctions.

====The effect of marriage====

Under s. 15 of the ''Wills Act'', a will is considered to be cancelled, or ''revoked'', once a person marries. Unless you make a new will after your marriage, you will be considered not to have any will at all, and if you die your estate will be distributed under the ''Estate Administration Act''.

====The effect of separation and divorce====

Although divorce doesn't revoke a will, divorce cancels those parts of a will which:

*name the dead person's former spouse to act as the executor of his or her estate, or
*make the former spouse a beneficiary under the will.

If a person dies intestate, only people who qualify as the person's spouse can benefit from the provisions of the ''Estate Administration Act''. If the dead person has ''divorced'' or if his or her marriage has been ''annulled'', a former spouse can't make a claim under the act.

If the dead person has only ''separated'' from his or her spouse, a surviving spouse is still a spouse who may be entitled to inherit under this act, even if an action for divorce has started or even if the parties have been separated for a long time. In the case of a couple who have been separated for more than a year before the death, however, the surviving spouse must apply to court to share in the estate.

===Unmarried couples===

A person can make a will making anyone a beneficiary of his or her estate. The nature of the person's relationship with a beneficiary only becomes important if a beneficiary, or a person who thinks he or she ought to be beneficiary, wants to make a claim against the person's estate.

The ''Estate Administration Act'', the law that applies when someone dies without a will, requires that a certain amount of a dead person's estate go to people who qualify as a ''spouse''. Spouse is defined as included "a common law spouse"; common law spouse is defined as:

<blockquote><tt>(a) a person who is united to another person by a marriage that, although not a legal marriage, is valid by common law, or</tt></blockquote>
<blockquote><tt>(b) is living with another person in a marriage-like relationship, and has lived in that relationship for a period of at least 2 years;</tt></blockquote>

The ''Wills Variation Act'' defines ''spouse'' as a person who:

<blockquote><tt>(a) is married to another person, or</tt></blockquote>
<blockquote><tt>(b) is living and cohabiting with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, and has lived and cohabited in that relationship for a period of at least 2 years.</tt></blockquote>

What's interesting about the ''Estate Administration Act'' and the ''Wills Variation Act'' is that they both require an unmarried spouses to be living with the person who has died at the time of his or her death. For married spouses, it's the fact of the parties' marriage that counts, not whether they are still living together.

===Planning ahead===

If you have separated and don't want your spouse to make a claim to your property after you die, you should change your will. If you are married and have separated, you should include wording in the new will to the effect that the new will is being made with your divorce in mind and stating that you do not wish to provide for your spouse as a result. You should then prepare another new will after the order for your divorce is made and is in effect.

If you are in an unmarried relationship, you should simply identify your former spouse as your former unmarried spouse, state that you do not wish to provide for him or her in your will, and briefly explain why you do not wish to provide for him or her.

==Parental support==

The old ''[http://canlii.ca/t/52069 Family Relations Act]'' used to allow parents to sue their adult children for support. That part of the ''Family Relations Act'' was repealed on 24 November 2011 and is not carried forward in the new ''[[Family Law Act]]'', and as result claims for parental support may no longer be brought in British Columbia.

==The conflict of laws==

The ''conflict of laws'' refers to the problems that arise when the courts and laws of two or more places may apply to the same problem. Problems with the conflict of laws usually arise in a family law context when:

*spouses have property in different provinces or countries,
*the courts of one jurisdiction have made an order and one or both of the parties have moved to a different jurisdiction, or
*the parties made a family agreement in one jurisdiction and have since moved to a new jurisdiction.

The law on this subject can be extremely complex. If you are involved in a family law problem involving the conflict of laws, you should seriously consider retaining a lawyer to help you.

===Children===

Different rules apply when orders about the care of children are made outside of British Columbia under the federal ''[[Divorce Act]]'' or outside of British Columbia, and outside of Canada, under another law.

====''Divorce Act'' orders====

When a court order about children has been made under the ''[[Divorce Act]]'', a spouse who moves to a different province can apply to change that order in the new province under s. 18 of the act. The order that the spouse gets, however, will only be a ''provisional order'' which has no immediate effect. The Attorney General is required to send the provisional order to the court that made the order, and that court will have a ''confirmation hearing'' under s. 19. If that court confirms the provisional order, the order will be changed.

Since the ''[[Divorce Act]]'' applies to the whole of Canada, ''[[Divorce Act]]'' orders have effect throughout Canada. An order made under the ''[[Divorce Act]]'' may be registered in any court in Canada under s. 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.

====Other orders made outside British Columbia====

When a court order about children has been made under a provincial law, such as Alberta's ''[http://canlii.ca/t/81vc Family Law Act]'' or the ''[http://canlii.ca/t/8k Children's Law Reform Act]'' of Ontario, or the laws of another country altogether, the order can be ''recognized'' by the courts of British Columbia under s. 75 of our ''[[Family Law Act]]''. A foreign order that has been recognized will be treated as an order of the British Columbia courts for enforcement purposes.

Under Division 7 of Part 4 of the ''[[Family Law Act]]'', the courts of British Columbia can also change orders about children that were made under the laws of a different province or territory, or under the laws of another country. Our courts will usually be very cautious in meddling with the orders of another court. Our court will usually hear an application for an order different than the original order if:

#the child normally lives in British Columbia, or
#the child is physically present in the province but will be at serious risk unless the original order is changed.

===Child support and spousal support===

Different rules apply when orders about support are made outside of British Columbia under the federal ''[[Divorce Act]]'' or outside of British Columbia, and outside of Canada, under another law.

====''Divorce Act'' orders====

An order for child support or spousal support made under the ''[[Divorce Act]]'' may be registered in any court in Canada under s. 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.

Under s. 5 of the ''[[Divorce Act]]'', the courts of British Columbia will hear an application for an order different than the original order if:

#either spouse normally lives in this province, or
#both spouses agree that our courts should deal with the matter.

====Other orders made outside British Columbia====

Where a support order was made under the law of another province or territory, the order can be ''registered'' in the courts of British Columbia under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]'', and can be enforced as if the order were an order of our courts by the person to whom the payments are owed, the ''recipient'', under the ''[[Family Law Act]]'', or by the recipient and the Family Maintenance Enforcement Program under the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''.

The ''Interjurisdictional Support Orders Act'' also allows for someone in British Columbia to start a process that could result in the order being changed, either by the court that made the original order or by a new court in the jurisdiction where the other parent now lives. In addition to Canada's other provinces and territories, the ''Interjurisdictional Support Orders Act'' also applies to the orders of some other countries, including the UK, the United States, Australia and New Zealand.

===Property and debt===

The ''[[Family Law Act]]'' is the only law in British Columbia that deals with the division of family property and family debt between married and unmarried spouses, and, at Division 6 of Part 5, the act makes special provisions for dealing with property located outside the province. These provisions are extraordinarily complicated and almost impossible to understand. You will almost certainly need to speak to a lawyer to figure them out.

Under s. 106 of the ''[[Family Law Act]]'', where another court can make an order about the same parties and the same property, the court here must first decide whether it should make any orders at all. The court may decide to deal with a claim if:

*the person against whom the claim is made, the ''respondent'', has made a claim for the division of property under the ''[[Family Law Act]]'',
*the parties agree that the court should deal with the claim,
*either party was "habitually resident" in the province when the court proceeding started, or
*there is a "real and substantial connection" between the province and the facts on which the property claim is based, because the property is located in the province, the parties’ most recent common habitual residence was in the province, or a court proceeding under the ''[[Divorce Act]]'' has been started here.

If the court decides to deal with the claim, the court may make orders about property and debt located outside the province by:

*dividing property here to take into account the value of the property outside the province,
*making orders about respecting the care, management, or use of the property outside the province, and
*making orders about ownership of the property outside the province.

==Immigration issues==

Problems involving immigration usually crop up because one spouse has sponsored the other spouse into Canada, or a spouse is concerned about deportation once the relationship ends. The discussion that follows provides only an overview of some of these problems. If you have an immigration concern, you really should speak to a lawyer who practises this kind of law.

===Permanent resident spouses===

Under new rules that were introduced in October 2012, sponsored spouses are under a ''conditional'' permanent residency status for the first two years. According to the press release from Citizenship and Immigration Canada:

<blockquote>"The spouse or partner must live in a legitimate relationship with their sponsor for two years from the day on which they receive their permanent resident status in Canada. The status of the sponsored spouse or partner may be revoked if they do not remain in the relationship."</blockquote>

In other words, the spouse who has been sponsored into Canada must stay with his or her spouse for at least two years or the spouse risks losing his or her permanent residency. This could be a serious problem if the potential loss of status forced people to stay in abusive relationships. However, the new rules appear to come with some exceptions. Here's more from the press release:

<blockquote>"The regulations include an exception for sponsored spouses or partners suffering abuse or neglect. The conditional measure would cease to apply in instances where there is evidence of abuse or neglect by the sponsor or if the sponsor fails to protect the sponsored spouse or partner from abuse or neglect. This abuse or neglect could be perpetrated by the sponsor or a person related to the sponsor, whether or not the abusive party is living in the household or not during the conditional period. The exception would also apply in the event of the death of the sponsor."</blockquote>

However, no matter what, your spouse may still remain responsible for supporting you and your children. If you are married, you will also remain entitled to claim a share in the family assets.

Although your spouse still has an obligation to support you as a sponsor, you will not lose your permanent resident status after the first two-year period if you have to apply for welfare, although you will be expected to try to get support from your spouse. If your relationship ended because of abuse, you may not have to try to get support from your spouse. Speak to your caseworker right away.

===Non-resident spouses===

If you do not have permanent resident status, you must seek legal advice and help right away, as the breakdown of your relationship with your sponsor may affect your ability to remain in Canada (if that's in fact what you'd like to do). There are a number of agencies that help immigrants and refugees. Seek them out immediately.

===Sponsoring spouses===
If you have sponsored your spouse into Canada, you have certain obligations to continue to provide for your spouse's needs. These responsibilities are for a fixed amount of time, and you will have promised to support your spouse when you signed the immigration forms. You have these responsibilities in addition to your responsibilities under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]''. A 2004 case of the Supreme Court, ''[http://canlii.ca/t/1q1m5 Aujla v. Aujla]'', 2004 BCSC 1566 held that a sponsor's obligations under a sponsorship agreement were obligations between the sponsor and the federal government, separate from the sponsor's obligation to pay spousal support under those acts.

If you are a sponsor and your relationship has ended, contact an immigration lawyer right away to find out exactly what your rights and obligations are.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/8q7l Charter of Rights and Freedoms]''
* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/840g Estate Administration Act]''
* ''[http://canlii.ca/t/84g0 Wills Variation Act]''
* ''[http://canlii.ca/t/84fx Wills Act]''
* ''[http://canlii.ca/t/7w02 Civil Marriage Act]''
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84g5 Adoption Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''

===Links===

[http://www.clicklaw.bc.ca/global/search?k=trans Clicklaw resources on trans issues]

[http://www.clicklaw.bc.ca/resource/1073 Legal Services Society booklet, Sponsorship Breakdown]

{{REVIEWED | reviewer = [[JP Boyd]], March 24, 2013}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

Further Topics and Overlapping Legal Issues in Family Law

2013-05-05T22:17:01Z

Gayla Reid: /* Married spouses */

{{JP Boyd on Family Law TOC|expanded = other}}

Problems like children's parenting arrangements, support, and the division of property are the everyday issues that crop up when a relationship breaks down. There is a whole host of other legal issues that fall under the family law umbrella, and it's a big umbrella.

This chapter deals with the more common of these other issues, including [[Adoption|adoption]], [[Family Violence|family violence and protection orders]], [[Parentage and Assisted Reproduction|determining parentage]], [[Naming and Changes of Name|changing names]], and more.

This first section is a bit of a grab bag and takes a look at a selection of relatively common family law problems. It talks about issues affecting the LGBT communities, wills and estates law, immigration law, parental support, and what happens when people and property are located in different legal jurisdictions.

==Same-sex relationships==

Not too long ago, this wiki had an entire chapter about the particular issues affecting those in same-sex relationships. That chapter, however, is no longer necessary. For the last 30 years or so, there has been a steady erosion of legislated discrimination between opposite- and same-sex relationships. While gays and lesbians may have to deal with homophobia and intolerance in their day-to-day lives, at least the discrimination that used to exist by the operation of law has been on the wane. From the [http://canlii.ca/t/5239 Little Sisters decision] on censorship to ''[http://canlii.ca/t/1frkt Egan v. Canada]'', [1995] 2 SCR 513, on spousal benefits, the courts of Canada have proven increasingly willing to extend the protection of the ''[http://canlii.ca/t/8q7l Charter of Rights and Freedoms]'' to overturn discriminatory legislation and, after some initial resistance, the governments of Canada have followed suit.

The realm of family law has proven no exception. To quote barbara findlay QC, a tireless advocate for queer rights, from a speech to the [http://www.cba.org/bc/home/main/ Canadian Bar Association British Columbia] a number of years ago:

<blockquote>"Gays and lesbians in British Columbia now have exactly the same rights and obligations towards one another as straight people do. Exactly the same. Full stop."</blockquote>

She is entirely correct. As far as the provincial statutes of British Columbia are concerned, and indeed the vast majority of federal statutes as well, there is equality. The Court of Appeal for British Columbia was among the first of Canada's appellate courts to acknowledge that restricting the right to marry to straight couples alone was an egregious breach of the equality rights of gays and lesbians, and our provincial ''[http://canlii.ca/t/84g5 Adoption Act]'' is one of the few in Canada that permit adoption by same-sex couples.

Gays and lesbians are equally entitled to pursue claims relating to the care of children, child support, spousal support, and the division of property as straight people are. Sexual orientation plays no part in the division of family property, nor is it a factor in determining issues relating to children or support.

How does family law intersect with gay and lesbian relationships? In every way. There is no relief known to family law of which straight couples can avail themselves that same-sex couples cannot.

===Marriage===

As a result of the 2005 federal ''[http://canlii.ca/t/7w02 Civil Marriage Act]'', same-sex couples can legally marry throughout Canada. Of course, not everyone can marry, such as close relatives or minors under a certain age. See the [[Married Spouses]] section of the [[Family Relationships]] chapter for more information about the capacity to marry, valid marriages and invalid marriages.

It's not just Canadian couples who can marry. Anyone from anywhere can get married in Canada, as long as they meet the Canadian criteria for a valid marriage. However, while a Canadian marriage is certainly legal in Canada, it may not be recognized as a valid marriage at home. If a couple's home country does not recognize same-sex marriages as valid marriages, the Canadian marriage is unlikely to be valid in that country.

===Children===

Whether the battle over a child is between two parents of the same gender or between parents of opposite genders, the legal test that the parents and the court should consider is the same: what arrangements are in the child's best interests? That is the only concern. The courts have been crystal clear that the sexual orientation of the parents is only one of many factors to be considered and is often a non-issue. This is what a few judges have had to say:

''[http://canlii.ca/t/1f6rk Anger v. Anger]'', 1998 CanLII 4490 (BCSC):

<blockquote>Mother sought an order that the children live primarily with her. Father opposed application as he found mother's sexual orientation "repugnant on religious and moral grounds." Court finding father doing everything he could to cut mother out of children's lives, and accepting psychologist's recommendation that children should live with mother. Mother's application allowed. No weight given to mother's sexual orientation.</blockquote>

''Murphy v. Laurence and Rogers'', Ontario Superior Court, 2002:

<blockquote>Applications by biological mother and mother's lesbian partner for custody and child support. Parties had three year common-law relationship in which mother remained at home and partner worked outside the home. Both acted as parents to child, and following separation, partner exercised liberal access to child. Child later, by agreement, going to live mostly with partner. Court finding child to have benefited from care of both women, and ordering joint custody with primary residence of child to mother based on blood tie. Negligible access given to father in light of history of disinterest in child. No weight given to mother's sexual orientation.</blockquote>
<blockquote>"The best interests of [the child] are, of course, what will govern any decision relating to custody in this matter. In this fundamental principle, same-sex parents seeking custody are no different than opposite-sex parents seeking custody."</blockquote>

''[http://canlii.ca/t/1w5d8 Bubis v. Jones]'', 2000 CanLII 22571 (ONSC):

<blockquote>Application by mother for vary order to obtain custody. Mother in lesbian relationship following separation from father. Court finding father prejudiced against lesbians, that same-sex preference of parent merely one of many factors to be considered, and in light of positive psychologist's report and change in mother's employment and stability, giving custody to mother.</blockquote>
<blockquote>"Homophobia is being replaced by reason and bigotry by tolerance — but not completely, since history tells us that, in matters of this nature, there will always be pockets of prejudice."</blockquote>
<blockquote>"There is no evidence that families with heterosexual parents are better able to meet the physical, psychological, emotional or intellectual needs of children than are families with homosexual parents."</blockquote>

===Child support===

Whether you are straight, gay, lesbian, bisexual, or something in between, if you qualify as a ''parent'' for the purposes of the ''[[Family Law Act]]'', or the child qualifies as a ''child of the marriage'' for the purposes of the ''[[Divorce Act]]'', child support will be payable by the person who has the child for the least amount of time to the person who has the child for the most amount of time. Child support will be payable at the amount specified under the [[Child Support Guidelines]] unless the parent paying support (the "payor") fits into one of a very narrow range of exceptions:

*the payment of support in the usual amount would cause "undue hardship,"
*the person paying child support, the ''payor'', is responsible for the care and control of the child for more than 40% of the child's time,
*the payor earns more than $150,000 per year, and payment of the table amount would result in an unfair windfall to the recipient, or
*other persons are also under a legal obligation to care for the child.

The only one of these exceptions that has any special relevance to same-sex couples is the last: where another person is also under an obligation to support the child. Assuming there is another parent in the picture apart from the other party to the relationship, that other parent will also be obliged to contribute to the support of the child. In ''Murphy v. Laurence and Rogers'', the biological mother of a child was entitled to receive child support from both her former lesbian partner and the child's father.

===Divorce===

The ''[[Divorce Act]]'' no longer requires spouses to be of opposite genders to qualify for a divorce order. Oh happy day.

==Issues affecting transgendered & transsexual people==

To be brutally frank, the jury is still out on how family law impacts on the trans community. Right now, the laws have slipped into a comfortable understanding of "the same or opposite genders" and only accommodates people on the spectrum in between with difficulty. While bisexuality is as close to a non-issue in this context as there can be, transgendered and transsexual people may well encounter difficulty in dealing with family law matters. This discussion offers only a gloss on some of the issues affecting this community.

If you have a family law problem and your orientation, gender or identity becomes an issue, contact a lawyer known to be sympathetic or activist on the issue, such as barbara findlay or another lawyer she can refer you to.

===Marriage===

As a result of the 2005 federal ''Civil Marriage Act'', gender is irrelevant in determining the ability of a couple to marry.

===Children===

Those who have discovered another self-identity during a relationship may find their new identities hotly at issue in the event that the living arrangements for any children must be decided in court. The problem here is that while shows like Will and Grace, The Birdcage and The L Word have made homosexuality something commonly understood and empathized with, nothing similar has popularized and explained the experience of the trans community.

It can be very difficult for people, including ex-partners, to understand trans issues, and this problem is especially acute in courtroom discussions about the care and control of children. Often the most important task is to demystify the person's self-identity and explain why his or her self-identity has no impact at all on his or her ability to parent, nor on the expected outcomes for the children.

On the bright side, the single reported case I was able to find in researching transgendered and transsexual family law issues dealt fairly positively with the subject. (This research is a few years old.) In ''[http://canlii.ca/t/fvzvc Forrester v. Saliba]'', 2000 CanLII 28722 ONCJ, a 2000 decision of the Ontario Court of Justice, the father of the child had begun the process of transitioning to female following the pronouncement of a consent order which provided that the parents would have joint custody of the child. The mother brought an application to vary the order to obtain sole custody of the child based on the stress and depression that affected the parents since the commencement of the transitioning process. Here are some interesting excerpts from the decision:

<blockquote>"I indicated at the beginning of the trial to both parties and their counsel that the [father's] transsexuality, in itself, without further evidence, would not constitute a material change in circumstances [necessary to consider varying a consent order], nor would it be considered a negative factor in a custody determination."</blockquote>
<blockquote>"The entire focus of this trial has been upon the consequences of the [father's] transgendering, the mental health issues that have arisen as a result of the [father's] transgendering process, and the [mother's] mental health issues. The evidence discloses that throughout all these problems suffered by the parties, the child Christine has remained happy and healthy and continues to enjoy a positive relationship with both parties. ... It appears from the evidence that Christine is a very well-adjusted, happy, healthy little girl, who in her own way has been able to accept the changes in her father and continues to enjoy a healthy relationship with her father, now a woman psychologically, as a person and a loving and caring human being."</blockquote>

The mother's application was dismissed.

===Child support===

Trans issues have no impact at all on the determination of child support. If you are a parent or qualify as a stepparent within the meaning of the applicable legislation, child support will be payable or receivable. End of story.

===Spousal support===

The simple fact of financial dependence, which would ordinarily have to be established to support a claim to spousal support, should be sufficient to prove an entitlement to support. If, however, the cause of the dependence or inability to be independent relates to or stems from the trans issue, be prepared to face some resistance. The problem will lie in establishing the legitimacy of the financial dependency arising from the trans issue; in other words, the problem will lie in convincing the judge dealing with the matter, if the matter has to go to court, that the issue you are dealing with isn't one of choice or a voluntary financial dependence.

===Divorce===

The ''[[Divorce Act]]'' no longer requires spouses to be of opposite genders, whether at the end of their marriage or at the beginning of it, to qualify for a divorce order.

==Wills and estates issues==

''Wills and estates'' refers to the area of law that deals with the drafting and interpretation of wills, how a dead person's estate is distributed when there is a valid will, how a dead person's estate is distributed when there isn't a valid will, and how certain relatives can challenge a dead person's will. In family law, issues concerning a person's will usually only come up when a couple have separated or are getting a divorce.

Making, changing, revoking, and enforcing wills are governed by the provincial ''[http://canlii.ca/t/84fx Wills Act]''. Sections 3 and 4 set out the basic requirements for a valid will:

<blockquote><tt>3 A will is valid only if it is in writing.</tt></blockquote>
<blockquote><tt>4 Subject to section 5, a will is not valid unless</tt></blockquote>
<blockquote><blockquote><tt>(a) at its end it is signed by the testator or signed in the testator's name by some other person in the testator's presence and by the testator's direction,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the testator makes or acknowledges the signature in the presence of 2 or more attesting witnesses present at the same time, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) 2 or more of the attesting witnesses subscribe the will in the presence of the testator.</tt></blockquote></blockquote>

The provincial ''[http://canlii.ca/t/84g0 Wills Variation Act]'' says that people are presumed to have a moral duty to provide for members of their immediate family. Under this act, spouses and children who have not been provided for in a will are able to challenge the will and ask the court that they be included and receive a share, or a bigger share, of the dead person's estate.

A person who dies without leaving a will is said to die ''intestate''. If a person dies intestate, their assets are dealt with according to the terms of the provincial ''[http://canlii.ca/t/840g Estate Administration Act]''. This law requires a person's estate to be distributed in a certain way, with the surviving spouse receiving a first, fixed share of the estate, and the remainder being split with any surviving children.

===Married spouses===

The law treats married spouses differently than unmarried couples, and it's important to be aware of the distinctions.

====The effect of marriage====

Under s. 15 of the ''Wills Act'', a will is considered to be cancelled, or ''revoked'', once a person marries. Unless you make a new will after your marriage, you will be considered not to have any will at all, and if you die your estate will be distributed under the ''Estate Administration Act''.

====The effect of separation and divorce====

Although divorce doesn't revoke a will, divorce cancels those parts of a will which:

*name the dead person's former spouse to act as the executor of his or her estate, or
*make the former spouse a beneficiary under the will.

If a person dies intestate, only people who qualify as the person's spouse can benefit from the provisions of the ''Estate Administration Act''. If the dead person has ''divorced'' or if his or her marriage has been ''annulled'', a former spouse can't make a claim under the act.

If the dead person has only ''separated'' from his or her spouse, a surviving spouse is still a spouse who may be entitled to inherit under this act, even if an action for divorce has started or even if the parties have been separated for a long time. In the case of a couple who have been separated for more than a year before the death, however, the surviving spouse must apply to court to share in the estate.

===Unmarried couples===

A person can make a will making anyone a beneficiary of his or her estate. The nature of the person's relationship with a beneficiary only becomes important if a beneficiary, or a person who thinks he or she ought to be beneficiary, wants to make a claim against the person's estate.

The ''Estate Administration Act'', the law that applies when someone dies without a will, requires that a certain amount of a dead person's estate go to people who qualify as a ''spouse''. Spouse is defined as included "a common law spouse"; common law spouse is defined as:

<blockquote><tt>(a) a person who is united to another person by a marriage that, although not a legal marriage, is valid by common law, or</tt></blockquote>
<blockquote><tt>(b) is living with another person in a marriage-like relationship, and has lived in that relationship for a period of at least 2 years;</tt></blockquote>

The ''Wills Variation Act'' defines ''spouse'' as a person who:

<blockquote><tt>(a) is married to another person, or</tt></blockquote>
<blockquote><tt>(b) is living and cohabiting with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, and has lived and cohabited in that relationship for a period of at least 2 years.</tt></blockquote>

What's interesting about the ''Estate Administration Act'' and the ''Wills Variation Act'' is that they both require an unmarried spouses to be living with the person who has died at the time of his or her death. For married spouses, it's the fact of the parties' marriage that counts, not whether they are still living together.

===Planning ahead===

If you have separated and don't want your spouse to make a claim to your property after you die, you should change your will. If you are married and have separated, you should include wording in the new will to the effect that the new will is being made with your divorce in mind and stating that you do not wish to provide for your spouse as a result. You should then prepare another new will after the order for your divorce is made and is in effect.

If you are in an unmarried relationship, you should simply identify your former spouse as your former unmarried spouse, state that you do not wish to provide for him or her in your will, and briefly explain why you do not wish to provide for him or her.

==Parental support==

The old ''[http://canlii.ca/t/52069 Family Relations Act]'' used to allow parents to sue their adult children for support. That part of the ''Family Relations Act'' was repealed on 24 November 2011 and is not carried forward in the new ''[[Family Law Act]]'', and as result claims for parental support may no longer be brought in British Columbia.

==The conflict of laws==

The ''conflict of laws'' refers to the problems that arise when the courts and laws of two or more places may apply to the same problem. Problems with the conflict of laws usually arise in a family law context when:

*spouses have property in different provinces or countries,
*the courts of one jurisdiction have made an order and one or both of the parties have moved to a different jurisdiction, or
*the parties made a family agreement in one jurisdiction and have since moved to a new jurisdiction.

The law on this subject can be extremely complex. If you are involved in a family law problem involving the conflict of laws, you should seriously consider retaining a lawyer to help you.

===Children===

Different rules apply when orders about the care of children are made outside of British Columbia under the federal ''[[Divorce Act]]'' or outside of British Columbia, and outside of Canada, under another law.

====''Divorce Act'' orders====

When a court order about children has been made under the ''[[Divorce Act]]'', a spouse who moves to a different province can apply to change that order in the new province under s. 18 of the act. The order that the spouse gets, however, will only be a ''provisional order'' which has no immediate effect. The Attorney General is required to send the provisional order to the court that made the order, and that court will have a ''confirmation hearing'' under s. 19. If that court confirms the provisional order, the order will be changed.

Since the ''[[Divorce Act]]'' applies to the whole of Canada, ''[[Divorce Act]]'' orders have effect throughout Canada. An order made under the ''[[Divorce Act]]'' may be registered in any court in Canada under s. 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.

====Other orders made outside British Columbia====

When a court order about children has been made under a provincial law, such as Alberta's ''[http://canlii.ca/t/81vc Family Law Act]'' or the ''[http://canlii.ca/t/8k Children's Law Reform Act]'' of Ontario, or the laws of another country altogether, the order can be ''recognized'' by the courts of British Columbia under s. 75 of our ''[[Family Law Act]]''. A foreign order that has been recognized will be treated as an order of the British Columbia courts for enforcement purposes.

Under Division 7 of Part 4 of the ''[[Family Law Act]]'', the courts of British Columbia can also change orders about children that were made under the laws of a different province or territory, or under the laws of another country. Our courts will usually be very cautious in meddling with the orders of another court. Our court will usually hear an application for an order different than the original order if:

#the child normally lives in British Columbia, or
#the child is physically present in the province but will be at serious risk unless the original order is changed.

===Child support and spousal support===

Different rules apply when orders about support are made outside of British Columbia under the federal ''[[Divorce Act]]'' or outside of British Columbia, and outside of Canada, under another law.

====''Divorce Act'' orders====

An order for child support or spousal support made under the ''[[Divorce Act]]'' may be registered in any court in Canada under s. 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.

Under s. 5 of the ''[[Divorce Act]]'', the courts of British Columbia will hear an application for an order different than the original order if:

#either spouse normally lives in this province, or
#both spouses agree that our courts should deal with the matter.

====Other orders made outside British Columbia====

Where a support order was made under the law of another province or territory, the order can be ''registered'' in the courts of British Columbia under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]'', and can be enforced as if the order were an order of our courts by the person to whom the payments are owed, the ''recipient'', under the ''[[Family Law Act]]'', or by the recipient and the Family Maintenance Enforcement Program under the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''.

The ''Interjurisdictional Support Orders Act'' also allows for someone in British Columbia to start a process that could result in the order being changed, either by the court that made the original order or by a new court in the jurisdiction where the other parent now lives. In addition to Canada's other provinces and territories, the ''Interjurisdictional Support Orders Act'' also applies to the orders of some other countries, including the UK, the United States, Australia and New Zealand.

===Property and debt===

The ''[[Family Law Act]]'' is the only law in British Columbia that deals with the division of family property and family debt between married and unmarried spouses, and, at Division 6 of Part 5, the act makes special provisions for dealing with property located outside the province. These provisions are extraordinarily complicated and almost impossible to understand. You will almost certainly need to speak to a lawyer to figure them out.

Under s. 106 of the ''[[Family Law Act]]'', where another court can make an order about the same parties and the same property, the court here must first decide whether it should make any orders at all. The court may decide to deal with a claim if:

*the person against whom the claim is made, the ''respondent'', has made a claim for the division of property under the ''[[Family Law Act]]'',
*the parties agree that the court should deal with the claim,
*either party was "habitually resident" in the province when the court proceeding started, or
*there is a "real and substantial connection" between the province and the facts on which the property claim is based, because the property is located in the province, the parties’ most recent common habitual residence was in the province, or a court proceeding under the ''[[Divorce Act]]'' has been started here.

If the court decides to deal with the claim, the court may make orders about property and debt located outside the province by:

*dividing property here to take into account the value of the property outside the province,
*making orders about respecting the care, management, or use of the property outside the province, and
*making orders about ownership of the property outside the province.

==Immigration issues==

Problems involving immigration usually crop up because one spouse has sponsored the other spouse into Canada, or a spouse is concerned about deportation once the relationship ends. The discussion that follows provides only an overview of some of these problems. If you have an immigration concern, you really should speak to a lawyer who practises this kind of law.

===Permanent resident spouses===

Under new rules that were introduced in October 2012, sponsored spouses are under a ''conditional'' permanent residency status for the first two years. According to the press release from Citizenship and Immigration Canada:

<blockquote>"The spouse or partner must live in a legitimate relationship with their sponsor for two years from the day on which they receive their permanent resident status in Canada. The status of the sponsored spouse or partner may be revoked if they do not remain in the relationship."</blockquote>

In other words, the spouse who has been sponsored into Canada must stay with his or her spouse for at least two years or the spouse risks losing his or her permanent residency. This could be a serious problem if the potential loss of status forced people to stay in abusive relationships. However, the new rules appear to come with some exceptions. Here's more from the press release:

<blockquote>"The regulations include an exception for sponsored spouses or partners suffering abuse or neglect. The conditional measure would cease to apply in instances where there is evidence of abuse or neglect by the sponsor or if the sponsor fails to protect the sponsored spouse or partner from abuse or neglect. This abuse or neglect could be perpetrated by the sponsor or a person related to the sponsor, whether or not the abusive party is living in the household or not during the conditional period. The exception would also apply in the event of the death of the sponsor."</blockquote>

However, no matter what, your spouse may still remain responsible for supporting you and your children. If you are married, you will also remain entitled to claim a share in the family assets.

Although your spouse still has an obligation to support you as a sponsor, you will not lose your permanent resident status after the first two-year period if you have to apply for welfare, although you will be expected to try to get support from your spouse. If your relationship ended because of abuse, you may not have to try to get support from your spouse. Speak to your caseworker right away.

===Non-resident spouses===

If you do not have permanent resident status, you must seek legal advice and help right away, as the breakdown of your relationship with your sponsor may affect your ability to remain in Canada (if that's in fact what you'd like to do). There are a number of agencies that help immigrants and refugees. Seek them out immediately.

===Sponsoring spouses===
If you have sponsored your spouse into Canada, you have certain obligations to continue to provide for your spouse's needs. These responsibilities are for a fixed amount of time, and you will have promised to support your spouse when you signed the immigration forms. You have these responsibilities in addition to your responsibilities under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]''. A 2004 case of the Supreme Court, ''[http://canlii.ca/t/1q1m5 Aujla v. Aujla]'', 2004 BCSC 1566 held that a sponsor's obligations under a sponsorship agreement were obligations between the sponsor and the federal government, separate from the sponsor's obligation to pay spousal support under those acts.

If you are a sponsor and your relationship has ended, contact an immigration lawyer right away to find out exactly what your rights and obligations are.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/8q7l Charter of Rights and Freedoms]''
* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/840g Estate Administration Act]''
* ''[http://canlii.ca/t/84g0 Wills Variation Act]''
* ''[http://canlii.ca/t/84fx Wills Act]''
* ''[http://canlii.ca/t/7w02 Civil Marriage Act]''
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84g5 Adoption Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''

===Links===

[http://www.clicklaw.bc.ca/global/search?k=trans Clicklaw resources on trans issues]

[http://www.clicklaw.bc.ca/resource/1073 Legal Services Society booklet, Sponsorship Breakdown]

{{REVIEWED | reviewer = [[JP Boyd]], March 24, 2013}}

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Divorce and the Law on Getting Divorced

2013-05-05T22:08:20Z

Gayla Reid: /* What happens if a response or counterclaim are filed? */

{{JP Boyd on Family Law TOC|expanded = separation}}
{{LSSbadge
| resourcetype = more information on
| link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/divorce.php Divorce]
}}Divorce is the legal termination of a marriage by an order of the court. Without this order, a couple will remain married to each other no matter how long they've been separated. Although a divorce order represents the formal conclusion of a marriage, where children are involved or one spouse is financially dependent on the other, issues about the payment of support and the care of the children will continue.

This section provides an overview of the grounds for divorce, and discusses the nature of a divorce order and the effect of foreign divorce orders in Canada. It also reviews the do-it-yourself divorce process, and the court forms used in that process, in enough detail that you can get your own divorce without having to hire a lawyer.

The criteria that must be met to obtain an annulment ― which is different than a divorce order and isn't nearly as simple and straightforward as most people think ― are discussed in the chapter [[Family Relationships]] within the section [[Married Spouses]].

==The grounds for divorce==

Under the federal ''[[Divorce Act]]'' there is really only one reason why you can apply for a divorce order, ''marriage breakdown''. Under s. 8 of the act, there are three reasons why marriage breakdown may have occurred:

#the intentional separation of the spouses for at least one year;
#the adultery of a spouse; and,
#one spouse's treatment of the other with such mental or physical cruelty that it is impossible to continue the marriage.

In Canada, all divorces proceed on a no-fault basis, regardless of the ground of divorce relied upon. ''No-fault'', in this context, means that the reasons for marriage breakdown have nothing at all to do with the court's consideration of issues like custody and support. No matter how upset someone is by a spouse's misbehaviour, it will have no impact on how the legal issues are addressed.

Most divorces are based on separation. The only advantage of seeking a divorce based on cruelty or adultery is that the divorce is available relatively quickly; you needn't wait for a year's worth of separation to pass before you are eligible for the order. However, while you are eligible to begin divorce proceedings as soon as you learn of the adultery or experience the cruelty, you must be able to prove that the other spouse committed the wrongful behaviour you allege.

As you can imagine, few people are prepared to admit that they committed adultery or battered their spouse, and as a result divorces based on these grounds rarely proceed smoothly. In fact, where a court action has dragged on long enough so that more than a year has passed since the parties separated before the matter finally comes to court, some judges will refuse to hear any evidence of the wrongful behaviour and will grant the divorce instead on the basis of the parties' separation.

===Separation===

To obtain a divorce based on separation for a period of at least one year, you and your spouse must have lived separate and apart for that year. The period of living separate and apart can pass while living under the same roof, however the marital qualities of your relationship with your spouse must have ended.

The ''Divorce Act'' provides that a couple can attempt to reconcile and resume married life for up to 90 days during this one-year period. If the couple live together for a total period of more than 90 days with the intention of getting back together, the clock resets and a new one-year period will not start running until after the couple separates again.

===Adultery===

A spouse who is claiming that the other spouse is guilty of adultery must prove this claim in court. Before the court will pronounce the order for divorce, the court must also be satisfied that the party making the claim has not ''condoned'' the adultery or ''connived'' to effect the adultery. If the court is not satisfied, it will not grant the divorce.

Proof of adultery normally consists of an affidavit from either your spouse or the person with whom your spouse committed the adulterous act, admitting to the adultery. You cannot seek a divorce based on your own adulterous conduct.

Many people will have seen the movie "Intolerable Cruelty," which lays a great deal of emphasis on the punitive consequences of adultery, and suggests that spouses caught with their pants down are going to lose everything they have. That might be true in the US, but it certainly isn't true in Canada. In Canada, there are no consequences for marital offences of that nature: you won't lose your house, you won't lose the children, and you won't find yourself living in a cardboard box. Adultery, while relevant as a ground of divorce, plays no role in the court's determination of these other issues.

===Cruelty===

A spouse who claims that the other spouse is guilty of cruelty must prove his or her claim in court. Cruelty can consist of physical abuse or mental abuse, and may also give rise to a claim for an award of damages as a result of the cruelty. Before the court will pronounce the divorce order, it must be satisfied that the party making the claim has not ''condoned'' the cruelty.

Proof of cruelty normally consists of a medical, psychological or psychiatric report, or, in some circumstances, a simple letter from a treating professional describing the abuse.

===Conspiracy, connivance and condonation===

If a court finds that there has been conspiracy, connivance, or condonation in the application for the divorce order, the court will not grant the order. The point of this is to ensure that a couple are not attempting to escape the requirements of the ''Divorce Act'' and cheat the court to get a quick divorce.

If there has been ''condonation'', the marital offence used to found the divorce claim, adultery or cruelty, has been forgiven. If the act has been forgiven, the court cannot pronounce a divorce order since the marital relationship hasn't broken down.

''Conspiracy'' and ''connivance'' are both attempts to cheat the court. A relationship must have legitimately broken down before the court will officially dissolve it; anything else would be a fraud upon the court. ''Conspiracy'' means that the spouses have worked together to achieve the wrongful act providing the ground for divorce. This could mean, for example, an agreement between the spouses for one of them to have sex with someone else in order to claim adultery as a ground of divorce. ''Connivance'' means to arrange for the wrongful act to occur. For example, this could include one spouse arranging for the other to be seduced by someone else in order to claim adultery as a ground of divorce.

===Child support===

The court is required, under s. 11(1)(b) of the ''Divorce Act'', to satisfy itself that "reasonable arrangements" have been made for the support of the children before it can grant an order for divorce. As you might expect, a ''reasonable arrangement'' usually means that child support is being paid according to the [[Child Support Guidelines]]. If you have children, you will have to prove that the children are being provided for as the Guidelines require before you can get a divorce. Remember that under the Guidelines, the table amount of child support payable for incomes of less than $10,800 per year is zero.

The only possible exception to this rule would be if the parent to whom child support is payable cannot be found, and the child support payments therefore cannot be paid. In such circumstances the court may make a divorce order that doesn't refer to child support, or it may make an order that merely refers to the payor's obligation to pay child support without fixing an amount payable.

==The divorce order==

In order to get a divorce order, the court must be satisfied that:

*the marriage legally exists,
*at least one of the parties has been ordinarily resident in British Columbia for at least one year before the proceeding began,
*the ground on which marriage breakdown in claimed has been proven, and,
*if there are children, an adequate amount of child support is being paid.

It is possible to oppose an application for a divorce order. Practically speaking, however, by the time the application gets before a judge, the responding party has usually come to realize that a divorce is inevitable. If the court is satisfied that the applicant is entitled to his or her order because the grounds for the divorce have been proven, the divorce is usually granted despite any objections by the other spouse.

===Corollary relief===

An order for divorce can be made on its own or together with ''corollary relief''. Typical orders for corollary relief include orders about the care of children, child support, and spousal support.

Divorce orders are usually made after all of the corollary issues, if any, have been dealt with, either as a result of a trial or a settlement reached following negotiations. The court will be reluctant to make a divorce order until all of the legal issues have been addressed.

===The appeal period===

Orders for divorce usually contain a term that "this order shall not take effect until the 31st day after its pronouncement." This is to allow the appeal period to expire. Once those 31 days have passed, however, the parties are officially divorced and are free to remarry if they wish.

It is possible to abridge this appeal period, if the divorce must take effect sooner for some urgent reason such as remarriage. If this is the case, you should advise the court of the need for haste, and a waiver of appeal will have to be filed.

===Certificate of divorce===

Once the appeal period has expired, either party may apply to the court, for a small filing fee, for a Certificate of Divorce. This is, strictly speaking, unnecessary, as the order is itself sufficient proof of divorce. Nevertheless, people often want this certificate to obtain a sense of closure, or because they expect to marry within the next couple of years, or because they may wish to prove they are divorced without having to disclose the other terms of their divorce order. Most family law lawyers take care to prepare Certificates of Divorce nicely in a format suitable for framing.

==Foreign divorce orders==

Section 22(1) of the ''Divorce Act'' deals with the effect in Canada of divorces obtained outside Canada. In a nutshell, if a divorce was properly granted by the foreign country the parties will also be considered to be divorced here, without the need to obtain a Canadian divorce order.

Of course, there is a small catch. Either spouse must have been "ordinarily resident" in the country in which the divorce was obtained for at least one year before the divorce proceedings started. In other words, if you've lived in Sri Lanka for less than a year before you started your application for divorce, your divorce may not be recognized in Canada even though it's perfectly good in Sri Lanka. As long as you had lived in Sri Lanka for more than one year before you started your application, your divorce there will be valid in Canada.

Even if a foreign divorce isn't good under Canadian law, everyone will usually accept the fact that the spouse is divorced. Whether the divorce meets Canadian requirements will only ever become an issue if one of the spouses later claims that the divorce is not valid. This can have some fairly serious consequences, mostly involving the division of property and pensions. You can find more information about the property entitlements of married spouses in the chapter [[Property & Debt in Family Law Matters]] within the section [[Dividing Property & Debt in Family Law Matters]].

==The do-it-yourself divorce==

The only way to obtain an order for divorce is by starting a court proceeding; you must sue your spouse if you want to get divorced. The do-it-yourself process, called the ''desk order divorce process'', allows you to obtain a final order for divorce without ever having to appear in court, and the order can deal with all of the issues between you and your spouse, from divorce to the division of property to child support.

You can get your divorce yourself using the desk order divorce process, without having to retain a lawyer. While some of the court forms can be a bit daunting, there are plenty of resources, such as this website, that can help you unravel the mysteries and complete the process on your own.

Generally speaking, a desk order divorce is appropriate in two situations:

#when the only issue between you and your spouse is getting a divorce; or,
#when you have other issues, but those have been settled, either through a separation agreement or an agreement about the terms of a consent order.

In the first case, a desk order application will be for a divorce alone. In the second case, a desk order application will be an application for a divorce plus ''corollary relief'', that is, orders apart from the divorce order itself, such as orders dealing with care of children, support, or the division of assets.

Most court proceedings go like this: the claimant files a Notice of Family Claim and serves it on the respondent; the respondent then files a Response to Family Claim and sometimes a Counterclaim. If the respondent fails to file a Response to Family Claim, the claimant's court proceeding is said to be ''uncontested''. This means that the respondent is assumed to either agree with the relief sought by the claimant or to have chosen not to defend the claim. In such circumstances, the claimant is free to seek a ''default judgment'' against the respondent.

A desk order divorce application is essentially an application for a default judgment, whether the claimant's court proceeding is for a divorce order alone or for a divorce order with corollary relief, and is governed by Rule 10-10 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules].

For a brief summary of this process, go to the ''How Do I?'' section of this resource and read [[How Do I Get Divorced?]] It's located under ''Marriage, Separation & Divorce''.

There are two types of desk order divorce actions:

#the sole application process, in which only one spouse is responsible for ushering the process through; and,
#the joint application process, in which the spouses work together to get the job done.

There are a few important differences between sole applications and joint applications.

*Joint applications are quicker and cheaper, but the spouses will have to cooperate with each other. In a sole application, no cooperation is required.
*A sole application takes a little longer since the person bringing the action has to serve the other spouse with the Notice of Family Claim and wait 40 days before proceeding. In a joint application, service is not necessary and you can apply for the divorce order right away.
*In a sole application, the spouses are called the claimant and respondent. In a joint application, the spouses are called claimant 1 and claimant 2.
*In a joint application, both spouses must sign the Notice of Family Claim, and both must execute an affidavit for the application for the divorce order.

===The sole divorce application===

These instructions are for the sole divorce application process:

'''Step One'''

<blockquote>Prepare your Notice of Family Claim. Make three copies of the original.</blockquote>

'''Step Two'''

<blockquote>Go to your local registry of the British Columbia Supreme Court. Bring the original Notice of Family Claim and the three copies you have made of it. Also bring the original of your government-issued Marriage Certificate. Fill out the Registration of Divorce Proceeding form, which will be available at the courthouse. File all of these materials and pay the $210 court fee. The court will stamp the action number and the court seal on all copies of your Notice of Family Claim, keep the original, and give you back the three duplicates. Your Marriage Certificate will go into the court file.</blockquote>

'''Step Three'''

<blockquote>Serve your ex with your Notice of Family Claim. You cannot serve your ex yourself; you must arrange for someone else to do it. Give the person who will be your process server two copies of your Notice of Family Claim, along with a photograph of your ex. The process server will serve one copy of the materials on your ex, and will use the photograph and the remaining copy in his or her Affidavit of Personal Service to prove that your ex was served.</blockquote>

'''Step Four'''

<blockquote>Once your ex is served, wait 40 days. Technically, you only need to wait 31 days from the date of service, but it doesn't hurt to add a few days just to be sure. If your ex files a Response to Family Claim or Counterclaim in this period, there's a problem. Read the discussion in "What happens if a response or counterclaim are filed?" at the end of this section.</blockquote>

'''Step Five'''

<blockquote>Prepare your Requisition asking the court for the divorce order, your Divorce Affidavit in support of the application, a draft of the order you want the court to make, and the Registrar's Certificate. If you have children, you will also have to prepare a Child Support Affidavit, which sets out the details of your income and your spouse's income and the terms on which child support will (or won't) be paid.</blockquote>

'''Step Six'''

<blockquote>Go to the court registry you filed your materials at, and file your Requisition, your Affidavit, your Child Support Affidavit if required, your Registrar's Certificate, your draft order, and your process server's Affidavit of Personal Service. Pay the $80 court fee.</blockquote>

'''Step Seven'''

<blockquote>Once you've filed your application, wait four weeks.</blockquote>

'''Step Eight'''

<blockquote>Start calling the court registry to see whether your order is ready for you to pick-up. This should take four to eight weeks, depending on how busy the court is. When your order is ready, go to the courthouse to get the entered order, and then mail a copy to your ex.</blockquote>

Once you've got your entered divorce order and 31 days have passed, you are officially divorced, and you have a court order bearing the seal of the court to prove it. Some people may find that a Certificate of Divorce is necessary in order to remarry. If you wish to get this Certificate, this is what you must do:

'''Step Nine'''

<blockquote>Wait 32 days from the date the divorce order was made. The date will be shown on the first page of the order.</blockquote>

'''Step Ten'''

<blockquote>Prepare your draft Certificate of Divorce and file it in the court registry, together with a Requisition asking the registry to complete the Certificate. Pay the $40 court fee, and grab a chair. The registry will normally complete your Certificate of Divorce while you wait.</blockquote>

===The joint divorce application===

The joint divorce application process is almost exactly the same as the sole divorce application process, except that some of the forms are different, service is not required, and the length of time it takes to get a divorce is about four to eight weeks in total.

These are the main differences between the joint application process and the sole application process:

*The parties are known as claimant 1 and claimant 2.
*A special form, Notice of Family Claim is required.
*Both parties sign the Notice of Family Claim.
*The Notice of Family Claim does not need to be served on anyone, and there is no waiting period that must pass before the application for the divorce order can be made.
*Both parties must swear an affidavit in support of the application for the divorce order.
*All of the documents can be filed at once, although at least one of the affidavits in support of the application must be sworn after everything else is filed, even if only by a few minutes.

If either party withdraws from the joint application process before the divorce order is made, there's a problem. Read the discussion in "What happens if a response or counterclaim are filed?" at the end of this section.

These instructions are for the joint divorce application process:

'''Step One'''

<blockquote>Prepare a joint Notice of Family Claim. Prepare and execute one Divorce Affidavit in support of the application; prepare your blank Registrar's Certificate; prepare and complete your Requisition to apply for the divorce order; and, prepare your draft order. Make two copies of everything. Prepare but do not execute the other Divorce Affidavit.</blockquote>

'''Step Two'''

<blockquote>Go to your local registry of the British Columbia Supreme Court. Bring all the documents listed in Step One and the original of your government-issued Marriage Certificate. Fill out the Registration of Divorce Proceeding form, which will be available at the family and divorce counter. File all of these materials (except the unexecuted affidavit) and pay the $290 court fee. The court will stamp the action number and the court seal on all copies of your joint Notice of Family Claim, keep the original, and give you back the two duplicates. Your Marriage Certificate will go into the court file.</blockquote>

'''Step Three'''

<blockquote>While you're at the registry counter, execute the remaining affidavit in support of the application for divorce, and pay the $40 court fee.</blockquote>

'''Step Four'''

<blockquote>Once you've filed your application, wait four weeks.</blockquote>

'''Step Five'''

<blockquote>Once four weeks have passed, start calling the court registry to see whether your order is ready for you to pick-up. This should take four to eight weeks, depending on how busy the court is. When your order is ready, go to the courthouse to pick the entered order up, and then mail a copy to your ex.</blockquote>

Once you've got your entered divorce order and 31 days have passed, you are officially divorced, and you have a court order bearing the seal of the court to prove it. Some people may find that a Certificate of Divorce is necessary in order to remarry. If you wish to get this Certificate, this is what you must do:

'''Step Six'''

<blockquote>Wait 32 days from the date the order was made. The date will be shown on the first page of the order.</blockquote>

'''Step Seven'''

<blockquote>Prepare your Certificate of Divorce and file it in the court registry, together with a Requisition asking the registry to complete the Certificate. Pay the $40 court fee, and grab a chair. The registry will normally complete your Certificate of Divorce while you wait.</blockquote>

With the exception of the special form, Notice of Family Claim, all of the forms used in the joint process are the same as the sole process, except that the parties aren't called claimant and respondent, they're called claimant 1 and claimant 2.

===Free services===

The Salvation Army's pro bono program and Access Pro Bono offer free meetings with lawyers who can review your forms with you before you file them in court. In some cases, the Salvation Army may also be able to prepare your documents for you. Although the lawyers available through these programs are not likely to prepare your documents, they will give them a check to make sure that the registry will accept them.

The British Columbia Continuing Legal Education Society has published an excellent guide to the desk order divorce process called the Desk Order Divorce Manual, which has samples of the different clauses you may need to complete your court forms. This book is available at your local courthouse library.

===Services that are not free===

====Lawyers====

You're usually best off if you hire a lawyer to handle your divorce for you, as your lawyer will be familiar with the nuances and complications of the desk order divorce process and can give you expert advice about the short- and long-term advantages and disadvantages of the arrangement you've worked out with your spouse. This can be critical where the terms or circumstances of your divorce are unusual or complicated.

Lawyers, however, come at a cost. You should expect that you will be charged fees of anywhere between $500 and $2,000 for your divorce, plus the lawyer's out-of-pocket expenses for things like court fees and photocopying.

====Commercial services====

A local company called Self-Counsel Press publishes a kit for the desk order divorce process. The kit, which costs something like $25 to $35, contains all the forms necessary to apply for a desk order divorce, plus instructions on how to make the application. Make sure that the kit you buy has forms that are current to the changes made on 18 March 2013.

There are a number of commercial services available online that will prepare all of the necessary documents for you, including:

*http://www.divorceoptions.ca
*http://www.untietheknot.ca
*http://www.britishcolumbiadivorce.ca

If I understand things correctly, untietheknot.ca will also file your documents in court for you. A Google search for the phrase "desk order divorce BC" should provide you with a few other options, but whatever you do, make sure you're using a service that offers the forms required for a divorce in British Columbia!

===What happens if a response or counterclaim are filed?===

The do-it-yourself divorce process is based on the idea that either everyone agrees to get divorced or no one is going to object to the divorce. The process will go off the rails if:

*'''Sole application:''' the respondent files a Response to Family Claim or a Counterclaim; or,
*'''Joint application:''' a claimant withdraws from the process and files a Response to Family Claim or a Counterclaim.

In either situation, the divorce action will cease to qualify as an ''undefended family law case'' within the meaning of Rule 1-1(1) and cannot proceed as a desk order. The divorce action will continue like any other contested family law case and proceed to trial if a settlement cannot be reached.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/80mh Federal Child Support Guidelines]''

===Links===

* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/divorce.php Legal Services Society’s Family Law Website: Divorce]
* Online Divorce Services:
**[http://www.divorceoptions.ca DivorceOptions.ca]
**[http://www.untietheknot.ca Untie The Knot Divorce Service]
**[http://www.britishcolumbiadivorce.ca Canadian Divorce Online]

{{REVIEWED | reviewer = [[JP Boyd]], March 24, 2013}}

{{JP Boyd on Family Law Navbox|type=chapters}}

[[Category:Marriage, Separation & Divorce]]

{{Creative Commons for JP Boyd}}

Divorce and the Law on Getting Divorced

2013-05-05T22:07:12Z

Gayla Reid: /* Commercial services */

{{JP Boyd on Family Law TOC|expanded = separation}}
{{LSSbadge
| resourcetype = more information on
| link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/divorce.php Divorce]
}}Divorce is the legal termination of a marriage by an order of the court. Without this order, a couple will remain married to each other no matter how long they've been separated. Although a divorce order represents the formal conclusion of a marriage, where children are involved or one spouse is financially dependent on the other, issues about the payment of support and the care of the children will continue.

This section provides an overview of the grounds for divorce, and discusses the nature of a divorce order and the effect of foreign divorce orders in Canada. It also reviews the do-it-yourself divorce process, and the court forms used in that process, in enough detail that you can get your own divorce without having to hire a lawyer.

The criteria that must be met to obtain an annulment ― which is different than a divorce order and isn't nearly as simple and straightforward as most people think ― are discussed in the chapter [[Family Relationships]] within the section [[Married Spouses]].

==The grounds for divorce==

Under the federal ''[[Divorce Act]]'' there is really only one reason why you can apply for a divorce order, ''marriage breakdown''. Under s. 8 of the act, there are three reasons why marriage breakdown may have occurred:

#the intentional separation of the spouses for at least one year;
#the adultery of a spouse; and,
#one spouse's treatment of the other with such mental or physical cruelty that it is impossible to continue the marriage.

In Canada, all divorces proceed on a no-fault basis, regardless of the ground of divorce relied upon. ''No-fault'', in this context, means that the reasons for marriage breakdown have nothing at all to do with the court's consideration of issues like custody and support. No matter how upset someone is by a spouse's misbehaviour, it will have no impact on how the legal issues are addressed.

Most divorces are based on separation. The only advantage of seeking a divorce based on cruelty or adultery is that the divorce is available relatively quickly; you needn't wait for a year's worth of separation to pass before you are eligible for the order. However, while you are eligible to begin divorce proceedings as soon as you learn of the adultery or experience the cruelty, you must be able to prove that the other spouse committed the wrongful behaviour you allege.

As you can imagine, few people are prepared to admit that they committed adultery or battered their spouse, and as a result divorces based on these grounds rarely proceed smoothly. In fact, where a court action has dragged on long enough so that more than a year has passed since the parties separated before the matter finally comes to court, some judges will refuse to hear any evidence of the wrongful behaviour and will grant the divorce instead on the basis of the parties' separation.

===Separation===

To obtain a divorce based on separation for a period of at least one year, you and your spouse must have lived separate and apart for that year. The period of living separate and apart can pass while living under the same roof, however the marital qualities of your relationship with your spouse must have ended.

The ''Divorce Act'' provides that a couple can attempt to reconcile and resume married life for up to 90 days during this one-year period. If the couple live together for a total period of more than 90 days with the intention of getting back together, the clock resets and a new one-year period will not start running until after the couple separates again.

===Adultery===

A spouse who is claiming that the other spouse is guilty of adultery must prove this claim in court. Before the court will pronounce the order for divorce, the court must also be satisfied that the party making the claim has not ''condoned'' the adultery or ''connived'' to effect the adultery. If the court is not satisfied, it will not grant the divorce.

Proof of adultery normally consists of an affidavit from either your spouse or the person with whom your spouse committed the adulterous act, admitting to the adultery. You cannot seek a divorce based on your own adulterous conduct.

Many people will have seen the movie "Intolerable Cruelty," which lays a great deal of emphasis on the punitive consequences of adultery, and suggests that spouses caught with their pants down are going to lose everything they have. That might be true in the US, but it certainly isn't true in Canada. In Canada, there are no consequences for marital offences of that nature: you won't lose your house, you won't lose the children, and you won't find yourself living in a cardboard box. Adultery, while relevant as a ground of divorce, plays no role in the court's determination of these other issues.

===Cruelty===

A spouse who claims that the other spouse is guilty of cruelty must prove his or her claim in court. Cruelty can consist of physical abuse or mental abuse, and may also give rise to a claim for an award of damages as a result of the cruelty. Before the court will pronounce the divorce order, it must be satisfied that the party making the claim has not ''condoned'' the cruelty.

Proof of cruelty normally consists of a medical, psychological or psychiatric report, or, in some circumstances, a simple letter from a treating professional describing the abuse.

===Conspiracy, connivance and condonation===

If a court finds that there has been conspiracy, connivance, or condonation in the application for the divorce order, the court will not grant the order. The point of this is to ensure that a couple are not attempting to escape the requirements of the ''Divorce Act'' and cheat the court to get a quick divorce.

If there has been ''condonation'', the marital offence used to found the divorce claim, adultery or cruelty, has been forgiven. If the act has been forgiven, the court cannot pronounce a divorce order since the marital relationship hasn't broken down.

''Conspiracy'' and ''connivance'' are both attempts to cheat the court. A relationship must have legitimately broken down before the court will officially dissolve it; anything else would be a fraud upon the court. ''Conspiracy'' means that the spouses have worked together to achieve the wrongful act providing the ground for divorce. This could mean, for example, an agreement between the spouses for one of them to have sex with someone else in order to claim adultery as a ground of divorce. ''Connivance'' means to arrange for the wrongful act to occur. For example, this could include one spouse arranging for the other to be seduced by someone else in order to claim adultery as a ground of divorce.

===Child support===

The court is required, under s. 11(1)(b) of the ''Divorce Act'', to satisfy itself that "reasonable arrangements" have been made for the support of the children before it can grant an order for divorce. As you might expect, a ''reasonable arrangement'' usually means that child support is being paid according to the [[Child Support Guidelines]]. If you have children, you will have to prove that the children are being provided for as the Guidelines require before you can get a divorce. Remember that under the Guidelines, the table amount of child support payable for incomes of less than $10,800 per year is zero.

The only possible exception to this rule would be if the parent to whom child support is payable cannot be found, and the child support payments therefore cannot be paid. In such circumstances the court may make a divorce order that doesn't refer to child support, or it may make an order that merely refers to the payor's obligation to pay child support without fixing an amount payable.

==The divorce order==

In order to get a divorce order, the court must be satisfied that:

*the marriage legally exists,
*at least one of the parties has been ordinarily resident in British Columbia for at least one year before the proceeding began,
*the ground on which marriage breakdown in claimed has been proven, and,
*if there are children, an adequate amount of child support is being paid.

It is possible to oppose an application for a divorce order. Practically speaking, however, by the time the application gets before a judge, the responding party has usually come to realize that a divorce is inevitable. If the court is satisfied that the applicant is entitled to his or her order because the grounds for the divorce have been proven, the divorce is usually granted despite any objections by the other spouse.

===Corollary relief===

An order for divorce can be made on its own or together with ''corollary relief''. Typical orders for corollary relief include orders about the care of children, child support, and spousal support.

Divorce orders are usually made after all of the corollary issues, if any, have been dealt with, either as a result of a trial or a settlement reached following negotiations. The court will be reluctant to make a divorce order until all of the legal issues have been addressed.

===The appeal period===

Orders for divorce usually contain a term that "this order shall not take effect until the 31st day after its pronouncement." This is to allow the appeal period to expire. Once those 31 days have passed, however, the parties are officially divorced and are free to remarry if they wish.

It is possible to abridge this appeal period, if the divorce must take effect sooner for some urgent reason such as remarriage. If this is the case, you should advise the court of the need for haste, and a waiver of appeal will have to be filed.

===Certificate of divorce===

Once the appeal period has expired, either party may apply to the court, for a small filing fee, for a Certificate of Divorce. This is, strictly speaking, unnecessary, as the order is itself sufficient proof of divorce. Nevertheless, people often want this certificate to obtain a sense of closure, or because they expect to marry within the next couple of years, or because they may wish to prove they are divorced without having to disclose the other terms of their divorce order. Most family law lawyers take care to prepare Certificates of Divorce nicely in a format suitable for framing.

==Foreign divorce orders==

Section 22(1) of the ''Divorce Act'' deals with the effect in Canada of divorces obtained outside Canada. In a nutshell, if a divorce was properly granted by the foreign country the parties will also be considered to be divorced here, without the need to obtain a Canadian divorce order.

Of course, there is a small catch. Either spouse must have been "ordinarily resident" in the country in which the divorce was obtained for at least one year before the divorce proceedings started. In other words, if you've lived in Sri Lanka for less than a year before you started your application for divorce, your divorce may not be recognized in Canada even though it's perfectly good in Sri Lanka. As long as you had lived in Sri Lanka for more than one year before you started your application, your divorce there will be valid in Canada.

Even if a foreign divorce isn't good under Canadian law, everyone will usually accept the fact that the spouse is divorced. Whether the divorce meets Canadian requirements will only ever become an issue if one of the spouses later claims that the divorce is not valid. This can have some fairly serious consequences, mostly involving the division of property and pensions. You can find more information about the property entitlements of married spouses in the chapter [[Property & Debt in Family Law Matters]] within the section [[Dividing Property & Debt in Family Law Matters]].

==The do-it-yourself divorce==

The only way to obtain an order for divorce is by starting a court proceeding; you must sue your spouse if you want to get divorced. The do-it-yourself process, called the ''desk order divorce process'', allows you to obtain a final order for divorce without ever having to appear in court, and the order can deal with all of the issues between you and your spouse, from divorce to the division of property to child support.

You can get your divorce yourself using the desk order divorce process, without having to retain a lawyer. While some of the court forms can be a bit daunting, there are plenty of resources, such as this website, that can help you unravel the mysteries and complete the process on your own.

Generally speaking, a desk order divorce is appropriate in two situations:

#when the only issue between you and your spouse is getting a divorce; or,
#when you have other issues, but those have been settled, either through a separation agreement or an agreement about the terms of a consent order.

In the first case, a desk order application will be for a divorce alone. In the second case, a desk order application will be an application for a divorce plus ''corollary relief'', that is, orders apart from the divorce order itself, such as orders dealing with care of children, support, or the division of assets.

Most court proceedings go like this: the claimant files a Notice of Family Claim and serves it on the respondent; the respondent then files a Response to Family Claim and sometimes a Counterclaim. If the respondent fails to file a Response to Family Claim, the claimant's court proceeding is said to be ''uncontested''. This means that the respondent is assumed to either agree with the relief sought by the claimant or to have chosen not to defend the claim. In such circumstances, the claimant is free to seek a ''default judgment'' against the respondent.

A desk order divorce application is essentially an application for a default judgment, whether the claimant's court proceeding is for a divorce order alone or for a divorce order with corollary relief, and is governed by Rule 10-10 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules].

For a brief summary of this process, go to the ''How Do I?'' section of this resource and read [[How Do I Get Divorced?]] It's located under ''Marriage, Separation & Divorce''.

There are two types of desk order divorce actions:

#the sole application process, in which only one spouse is responsible for ushering the process through; and,
#the joint application process, in which the spouses work together to get the job done.

There are a few important differences between sole applications and joint applications.

*Joint applications are quicker and cheaper, but the spouses will have to cooperate with each other. In a sole application, no cooperation is required.
*A sole application takes a little longer since the person bringing the action has to serve the other spouse with the Notice of Family Claim and wait 40 days before proceeding. In a joint application, service is not necessary and you can apply for the divorce order right away.
*In a sole application, the spouses are called the claimant and respondent. In a joint application, the spouses are called claimant 1 and claimant 2.
*In a joint application, both spouses must sign the Notice of Family Claim, and both must execute an affidavit for the application for the divorce order.

===The sole divorce application===

These instructions are for the sole divorce application process:

'''Step One'''

<blockquote>Prepare your Notice of Family Claim. Make three copies of the original.</blockquote>

'''Step Two'''

<blockquote>Go to your local registry of the British Columbia Supreme Court. Bring the original Notice of Family Claim and the three copies you have made of it. Also bring the original of your government-issued Marriage Certificate. Fill out the Registration of Divorce Proceeding form, which will be available at the courthouse. File all of these materials and pay the $210 court fee. The court will stamp the action number and the court seal on all copies of your Notice of Family Claim, keep the original, and give you back the three duplicates. Your Marriage Certificate will go into the court file.</blockquote>

'''Step Three'''

<blockquote>Serve your ex with your Notice of Family Claim. You cannot serve your ex yourself; you must arrange for someone else to do it. Give the person who will be your process server two copies of your Notice of Family Claim, along with a photograph of your ex. The process server will serve one copy of the materials on your ex, and will use the photograph and the remaining copy in his or her Affidavit of Personal Service to prove that your ex was served.</blockquote>

'''Step Four'''

<blockquote>Once your ex is served, wait 40 days. Technically, you only need to wait 31 days from the date of service, but it doesn't hurt to add a few days just to be sure. If your ex files a Response to Family Claim or Counterclaim in this period, there's a problem. Read the discussion in "What happens if a response or counterclaim are filed?" at the end of this section.</blockquote>

'''Step Five'''

<blockquote>Prepare your Requisition asking the court for the divorce order, your Divorce Affidavit in support of the application, a draft of the order you want the court to make, and the Registrar's Certificate. If you have children, you will also have to prepare a Child Support Affidavit, which sets out the details of your income and your spouse's income and the terms on which child support will (or won't) be paid.</blockquote>

'''Step Six'''

<blockquote>Go to the court registry you filed your materials at, and file your Requisition, your Affidavit, your Child Support Affidavit if required, your Registrar's Certificate, your draft order, and your process server's Affidavit of Personal Service. Pay the $80 court fee.</blockquote>

'''Step Seven'''

<blockquote>Once you've filed your application, wait four weeks.</blockquote>

'''Step Eight'''

<blockquote>Start calling the court registry to see whether your order is ready for you to pick-up. This should take four to eight weeks, depending on how busy the court is. When your order is ready, go to the courthouse to get the entered order, and then mail a copy to your ex.</blockquote>

Once you've got your entered divorce order and 31 days have passed, you are officially divorced, and you have a court order bearing the seal of the court to prove it. Some people may find that a Certificate of Divorce is necessary in order to remarry. If you wish to get this Certificate, this is what you must do:

'''Step Nine'''

<blockquote>Wait 32 days from the date the divorce order was made. The date will be shown on the first page of the order.</blockquote>

'''Step Ten'''

<blockquote>Prepare your draft Certificate of Divorce and file it in the court registry, together with a Requisition asking the registry to complete the Certificate. Pay the $40 court fee, and grab a chair. The registry will normally complete your Certificate of Divorce while you wait.</blockquote>

===The joint divorce application===

The joint divorce application process is almost exactly the same as the sole divorce application process, except that some of the forms are different, service is not required, and the length of time it takes to get a divorce is about four to eight weeks in total.

These are the main differences between the joint application process and the sole application process:

*The parties are known as claimant 1 and claimant 2.
*A special form, Notice of Family Claim is required.
*Both parties sign the Notice of Family Claim.
*The Notice of Family Claim does not need to be served on anyone, and there is no waiting period that must pass before the application for the divorce order can be made.
*Both parties must swear an affidavit in support of the application for the divorce order.
*All of the documents can be filed at once, although at least one of the affidavits in support of the application must be sworn after everything else is filed, even if only by a few minutes.

If either party withdraws from the joint application process before the divorce order is made, there's a problem. Read the discussion in "What happens if a response or counterclaim are filed?" at the end of this section.

These instructions are for the joint divorce application process:

'''Step One'''

<blockquote>Prepare a joint Notice of Family Claim. Prepare and execute one Divorce Affidavit in support of the application; prepare your blank Registrar's Certificate; prepare and complete your Requisition to apply for the divorce order; and, prepare your draft order. Make two copies of everything. Prepare but do not execute the other Divorce Affidavit.</blockquote>

'''Step Two'''

<blockquote>Go to your local registry of the British Columbia Supreme Court. Bring all the documents listed in Step One and the original of your government-issued Marriage Certificate. Fill out the Registration of Divorce Proceeding form, which will be available at the family and divorce counter. File all of these materials (except the unexecuted affidavit) and pay the $290 court fee. The court will stamp the action number and the court seal on all copies of your joint Notice of Family Claim, keep the original, and give you back the two duplicates. Your Marriage Certificate will go into the court file.</blockquote>

'''Step Three'''

<blockquote>While you're at the registry counter, execute the remaining affidavit in support of the application for divorce, and pay the $40 court fee.</blockquote>

'''Step Four'''

<blockquote>Once you've filed your application, wait four weeks.</blockquote>

'''Step Five'''

<blockquote>Once four weeks have passed, start calling the court registry to see whether your order is ready for you to pick-up. This should take four to eight weeks, depending on how busy the court is. When your order is ready, go to the courthouse to pick the entered order up, and then mail a copy to your ex.</blockquote>

Once you've got your entered divorce order and 31 days have passed, you are officially divorced, and you have a court order bearing the seal of the court to prove it. Some people may find that a Certificate of Divorce is necessary in order to remarry. If you wish to get this Certificate, this is what you must do:

'''Step Six'''

<blockquote>Wait 32 days from the date the order was made. The date will be shown on the first page of the order.</blockquote>

'''Step Seven'''

<blockquote>Prepare your Certificate of Divorce and file it in the court registry, together with a Requisition asking the registry to complete the Certificate. Pay the $40 court fee, and grab a chair. The registry will normally complete your Certificate of Divorce while you wait.</blockquote>

With the exception of the special form, Notice of Family Claim, all of the forms used in the joint process are the same as the sole process, except that the parties aren't called claimant and respondent, they're called claimant 1 and claimant 2.

===Free services===

The Salvation Army's pro bono program and Access Pro Bono offer free meetings with lawyers who can review your forms with you before you file them in court. In some cases, the Salvation Army may also be able to prepare your documents for you. Although the lawyers available through these programs are not likely to prepare your documents, they will give them a check to make sure that the registry will accept them.

The British Columbia Continuing Legal Education Society has published an excellent guide to the desk order divorce process called the Desk Order Divorce Manual, which has samples of the different clauses you may need to complete your court forms. This book is available at your local courthouse library.

===Services that are not free===

====Lawyers====

You're usually best off if you hire a lawyer to handle your divorce for you, as your lawyer will be familiar with the nuances and complications of the desk order divorce process and can give you expert advice about the short- and long-term advantages and disadvantages of the arrangement you've worked out with your spouse. This can be critical where the terms or circumstances of your divorce are unusual or complicated.

Lawyers, however, come at a cost. You should expect that you will be charged fees of anywhere between $500 and $2,000 for your divorce, plus the lawyer's out-of-pocket expenses for things like court fees and photocopying.

====Commercial services====

A local company called Self-Counsel Press publishes a kit for the desk order divorce process. The kit, which costs something like $25 to $35, contains all the forms necessary to apply for a desk order divorce, plus instructions on how to make the application. Make sure that the kit you buy has forms that are current to the changes made on 18 March 2013.

There are a number of commercial services available online that will prepare all of the necessary documents for you, including:

*http://www.divorceoptions.ca
*http://www.untietheknot.ca
*http://www.britishcolumbiadivorce.ca

If I understand things correctly, untietheknot.ca will also file your documents in court for you. A Google search for the phrase "desk order divorce BC" should provide you with a few other options, but whatever you do, make sure you're using a service that offers the forms required for a divorce in British Columbia!

===What happens if a response or counterclaim are filed?===

The do-it-yourself divorce process is based on the idea that either everyone agrees to get divorced or no one is going to object to the divorce. The process will go off the rails if:

*'''Sole Application:''' the respondent files a Response to Family Claim or a Counterclaim; or,
*'''Joint Application:''' a claimant withdraws from the process and files a Response to Family Claim or a Counterclaim.

In either situation, the divorce action will cease to qualify as an ''undefended family law case'' within the meaning of Rule 1-1(1) and cannot proceed as a desk order. The divorce action will continue like any other contested family law case and proceed to trial if a settlement cannot be reached.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/80mh Federal Child Support Guidelines]''

===Links===

* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/divorce.php Legal Services Society’s Family Law Website: Divorce]
* Online Divorce Services:
**[http://www.divorceoptions.ca DivorceOptions.ca]
**[http://www.untietheknot.ca Untie The Knot Divorce Service]
**[http://www.britishcolumbiadivorce.ca Canadian Divorce Online]

{{REVIEWED | reviewer = [[JP Boyd]], March 24, 2013}}

{{JP Boyd on Family Law Navbox|type=chapters}}

[[Category:Marriage, Separation & Divorce]]

{{Creative Commons for JP Boyd}}

Divorce and the Law on Getting Divorced

2013-05-05T22:05:07Z

Gayla Reid: /* The joint divorce application */

{{JP Boyd on Family Law TOC|expanded = separation}}
{{LSSbadge
| resourcetype = more information on
| link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/divorce.php Divorce]
}}Divorce is the legal termination of a marriage by an order of the court. Without this order, a couple will remain married to each other no matter how long they've been separated. Although a divorce order represents the formal conclusion of a marriage, where children are involved or one spouse is financially dependent on the other, issues about the payment of support and the care of the children will continue.

This section provides an overview of the grounds for divorce, and discusses the nature of a divorce order and the effect of foreign divorce orders in Canada. It also reviews the do-it-yourself divorce process, and the court forms used in that process, in enough detail that you can get your own divorce without having to hire a lawyer.

The criteria that must be met to obtain an annulment ― which is different than a divorce order and isn't nearly as simple and straightforward as most people think ― are discussed in the chapter [[Family Relationships]] within the section [[Married Spouses]].

==The grounds for divorce==

Under the federal ''[[Divorce Act]]'' there is really only one reason why you can apply for a divorce order, ''marriage breakdown''. Under s. 8 of the act, there are three reasons why marriage breakdown may have occurred:

#the intentional separation of the spouses for at least one year;
#the adultery of a spouse; and,
#one spouse's treatment of the other with such mental or physical cruelty that it is impossible to continue the marriage.

In Canada, all divorces proceed on a no-fault basis, regardless of the ground of divorce relied upon. ''No-fault'', in this context, means that the reasons for marriage breakdown have nothing at all to do with the court's consideration of issues like custody and support. No matter how upset someone is by a spouse's misbehaviour, it will have no impact on how the legal issues are addressed.

Most divorces are based on separation. The only advantage of seeking a divorce based on cruelty or adultery is that the divorce is available relatively quickly; you needn't wait for a year's worth of separation to pass before you are eligible for the order. However, while you are eligible to begin divorce proceedings as soon as you learn of the adultery or experience the cruelty, you must be able to prove that the other spouse committed the wrongful behaviour you allege.

As you can imagine, few people are prepared to admit that they committed adultery or battered their spouse, and as a result divorces based on these grounds rarely proceed smoothly. In fact, where a court action has dragged on long enough so that more than a year has passed since the parties separated before the matter finally comes to court, some judges will refuse to hear any evidence of the wrongful behaviour and will grant the divorce instead on the basis of the parties' separation.

===Separation===

To obtain a divorce based on separation for a period of at least one year, you and your spouse must have lived separate and apart for that year. The period of living separate and apart can pass while living under the same roof, however the marital qualities of your relationship with your spouse must have ended.

The ''Divorce Act'' provides that a couple can attempt to reconcile and resume married life for up to 90 days during this one-year period. If the couple live together for a total period of more than 90 days with the intention of getting back together, the clock resets and a new one-year period will not start running until after the couple separates again.

===Adultery===

A spouse who is claiming that the other spouse is guilty of adultery must prove this claim in court. Before the court will pronounce the order for divorce, the court must also be satisfied that the party making the claim has not ''condoned'' the adultery or ''connived'' to effect the adultery. If the court is not satisfied, it will not grant the divorce.

Proof of adultery normally consists of an affidavit from either your spouse or the person with whom your spouse committed the adulterous act, admitting to the adultery. You cannot seek a divorce based on your own adulterous conduct.

Many people will have seen the movie "Intolerable Cruelty," which lays a great deal of emphasis on the punitive consequences of adultery, and suggests that spouses caught with their pants down are going to lose everything they have. That might be true in the US, but it certainly isn't true in Canada. In Canada, there are no consequences for marital offences of that nature: you won't lose your house, you won't lose the children, and you won't find yourself living in a cardboard box. Adultery, while relevant as a ground of divorce, plays no role in the court's determination of these other issues.

===Cruelty===

A spouse who claims that the other spouse is guilty of cruelty must prove his or her claim in court. Cruelty can consist of physical abuse or mental abuse, and may also give rise to a claim for an award of damages as a result of the cruelty. Before the court will pronounce the divorce order, it must be satisfied that the party making the claim has not ''condoned'' the cruelty.

Proof of cruelty normally consists of a medical, psychological or psychiatric report, or, in some circumstances, a simple letter from a treating professional describing the abuse.

===Conspiracy, connivance and condonation===

If a court finds that there has been conspiracy, connivance, or condonation in the application for the divorce order, the court will not grant the order. The point of this is to ensure that a couple are not attempting to escape the requirements of the ''Divorce Act'' and cheat the court to get a quick divorce.

If there has been ''condonation'', the marital offence used to found the divorce claim, adultery or cruelty, has been forgiven. If the act has been forgiven, the court cannot pronounce a divorce order since the marital relationship hasn't broken down.

''Conspiracy'' and ''connivance'' are both attempts to cheat the court. A relationship must have legitimately broken down before the court will officially dissolve it; anything else would be a fraud upon the court. ''Conspiracy'' means that the spouses have worked together to achieve the wrongful act providing the ground for divorce. This could mean, for example, an agreement between the spouses for one of them to have sex with someone else in order to claim adultery as a ground of divorce. ''Connivance'' means to arrange for the wrongful act to occur. For example, this could include one spouse arranging for the other to be seduced by someone else in order to claim adultery as a ground of divorce.

===Child support===

The court is required, under s. 11(1)(b) of the ''Divorce Act'', to satisfy itself that "reasonable arrangements" have been made for the support of the children before it can grant an order for divorce. As you might expect, a ''reasonable arrangement'' usually means that child support is being paid according to the [[Child Support Guidelines]]. If you have children, you will have to prove that the children are being provided for as the Guidelines require before you can get a divorce. Remember that under the Guidelines, the table amount of child support payable for incomes of less than $10,800 per year is zero.

The only possible exception to this rule would be if the parent to whom child support is payable cannot be found, and the child support payments therefore cannot be paid. In such circumstances the court may make a divorce order that doesn't refer to child support, or it may make an order that merely refers to the payor's obligation to pay child support without fixing an amount payable.

==The divorce order==

In order to get a divorce order, the court must be satisfied that:

*the marriage legally exists,
*at least one of the parties has been ordinarily resident in British Columbia for at least one year before the proceeding began,
*the ground on which marriage breakdown in claimed has been proven, and,
*if there are children, an adequate amount of child support is being paid.

It is possible to oppose an application for a divorce order. Practically speaking, however, by the time the application gets before a judge, the responding party has usually come to realize that a divorce is inevitable. If the court is satisfied that the applicant is entitled to his or her order because the grounds for the divorce have been proven, the divorce is usually granted despite any objections by the other spouse.

===Corollary relief===

An order for divorce can be made on its own or together with ''corollary relief''. Typical orders for corollary relief include orders about the care of children, child support, and spousal support.

Divorce orders are usually made after all of the corollary issues, if any, have been dealt with, either as a result of a trial or a settlement reached following negotiations. The court will be reluctant to make a divorce order until all of the legal issues have been addressed.

===The appeal period===

Orders for divorce usually contain a term that "this order shall not take effect until the 31st day after its pronouncement." This is to allow the appeal period to expire. Once those 31 days have passed, however, the parties are officially divorced and are free to remarry if they wish.

It is possible to abridge this appeal period, if the divorce must take effect sooner for some urgent reason such as remarriage. If this is the case, you should advise the court of the need for haste, and a waiver of appeal will have to be filed.

===Certificate of divorce===

Once the appeal period has expired, either party may apply to the court, for a small filing fee, for a Certificate of Divorce. This is, strictly speaking, unnecessary, as the order is itself sufficient proof of divorce. Nevertheless, people often want this certificate to obtain a sense of closure, or because they expect to marry within the next couple of years, or because they may wish to prove they are divorced without having to disclose the other terms of their divorce order. Most family law lawyers take care to prepare Certificates of Divorce nicely in a format suitable for framing.

==Foreign divorce orders==

Section 22(1) of the ''Divorce Act'' deals with the effect in Canada of divorces obtained outside Canada. In a nutshell, if a divorce was properly granted by the foreign country the parties will also be considered to be divorced here, without the need to obtain a Canadian divorce order.

Of course, there is a small catch. Either spouse must have been "ordinarily resident" in the country in which the divorce was obtained for at least one year before the divorce proceedings started. In other words, if you've lived in Sri Lanka for less than a year before you started your application for divorce, your divorce may not be recognized in Canada even though it's perfectly good in Sri Lanka. As long as you had lived in Sri Lanka for more than one year before you started your application, your divorce there will be valid in Canada.

Even if a foreign divorce isn't good under Canadian law, everyone will usually accept the fact that the spouse is divorced. Whether the divorce meets Canadian requirements will only ever become an issue if one of the spouses later claims that the divorce is not valid. This can have some fairly serious consequences, mostly involving the division of property and pensions. You can find more information about the property entitlements of married spouses in the chapter [[Property & Debt in Family Law Matters]] within the section [[Dividing Property & Debt in Family Law Matters]].

==The do-it-yourself divorce==

The only way to obtain an order for divorce is by starting a court proceeding; you must sue your spouse if you want to get divorced. The do-it-yourself process, called the ''desk order divorce process'', allows you to obtain a final order for divorce without ever having to appear in court, and the order can deal with all of the issues between you and your spouse, from divorce to the division of property to child support.

You can get your divorce yourself using the desk order divorce process, without having to retain a lawyer. While some of the court forms can be a bit daunting, there are plenty of resources, such as this website, that can help you unravel the mysteries and complete the process on your own.

Generally speaking, a desk order divorce is appropriate in two situations:

#when the only issue between you and your spouse is getting a divorce; or,
#when you have other issues, but those have been settled, either through a separation agreement or an agreement about the terms of a consent order.

In the first case, a desk order application will be for a divorce alone. In the second case, a desk order application will be an application for a divorce plus ''corollary relief'', that is, orders apart from the divorce order itself, such as orders dealing with care of children, support, or the division of assets.

Most court proceedings go like this: the claimant files a Notice of Family Claim and serves it on the respondent; the respondent then files a Response to Family Claim and sometimes a Counterclaim. If the respondent fails to file a Response to Family Claim, the claimant's court proceeding is said to be ''uncontested''. This means that the respondent is assumed to either agree with the relief sought by the claimant or to have chosen not to defend the claim. In such circumstances, the claimant is free to seek a ''default judgment'' against the respondent.

A desk order divorce application is essentially an application for a default judgment, whether the claimant's court proceeding is for a divorce order alone or for a divorce order with corollary relief, and is governed by Rule 10-10 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules].

For a brief summary of this process, go to the ''How Do I?'' section of this resource and read [[How Do I Get Divorced?]] It's located under ''Marriage, Separation & Divorce''.

There are two types of desk order divorce actions:

#the sole application process, in which only one spouse is responsible for ushering the process through; and,
#the joint application process, in which the spouses work together to get the job done.

There are a few important differences between sole applications and joint applications.

*Joint applications are quicker and cheaper, but the spouses will have to cooperate with each other. In a sole application, no cooperation is required.
*A sole application takes a little longer since the person bringing the action has to serve the other spouse with the Notice of Family Claim and wait 40 days before proceeding. In a joint application, service is not necessary and you can apply for the divorce order right away.
*In a sole application, the spouses are called the claimant and respondent. In a joint application, the spouses are called claimant 1 and claimant 2.
*In a joint application, both spouses must sign the Notice of Family Claim, and both must execute an affidavit for the application for the divorce order.

===The sole divorce application===

These instructions are for the sole divorce application process:

'''Step One'''

<blockquote>Prepare your Notice of Family Claim. Make three copies of the original.</blockquote>

'''Step Two'''

<blockquote>Go to your local registry of the British Columbia Supreme Court. Bring the original Notice of Family Claim and the three copies you have made of it. Also bring the original of your government-issued Marriage Certificate. Fill out the Registration of Divorce Proceeding form, which will be available at the courthouse. File all of these materials and pay the $210 court fee. The court will stamp the action number and the court seal on all copies of your Notice of Family Claim, keep the original, and give you back the three duplicates. Your Marriage Certificate will go into the court file.</blockquote>

'''Step Three'''

<blockquote>Serve your ex with your Notice of Family Claim. You cannot serve your ex yourself; you must arrange for someone else to do it. Give the person who will be your process server two copies of your Notice of Family Claim, along with a photograph of your ex. The process server will serve one copy of the materials on your ex, and will use the photograph and the remaining copy in his or her Affidavit of Personal Service to prove that your ex was served.</blockquote>

'''Step Four'''

<blockquote>Once your ex is served, wait 40 days. Technically, you only need to wait 31 days from the date of service, but it doesn't hurt to add a few days just to be sure. If your ex files a Response to Family Claim or Counterclaim in this period, there's a problem. Read the discussion in "What happens if a response or counterclaim are filed?" at the end of this section.</blockquote>

'''Step Five'''

<blockquote>Prepare your Requisition asking the court for the divorce order, your Divorce Affidavit in support of the application, a draft of the order you want the court to make, and the Registrar's Certificate. If you have children, you will also have to prepare a Child Support Affidavit, which sets out the details of your income and your spouse's income and the terms on which child support will (or won't) be paid.</blockquote>

'''Step Six'''

<blockquote>Go to the court registry you filed your materials at, and file your Requisition, your Affidavit, your Child Support Affidavit if required, your Registrar's Certificate, your draft order, and your process server's Affidavit of Personal Service. Pay the $80 court fee.</blockquote>

'''Step Seven'''

<blockquote>Once you've filed your application, wait four weeks.</blockquote>

'''Step Eight'''

<blockquote>Start calling the court registry to see whether your order is ready for you to pick-up. This should take four to eight weeks, depending on how busy the court is. When your order is ready, go to the courthouse to get the entered order, and then mail a copy to your ex.</blockquote>

Once you've got your entered divorce order and 31 days have passed, you are officially divorced, and you have a court order bearing the seal of the court to prove it. Some people may find that a Certificate of Divorce is necessary in order to remarry. If you wish to get this Certificate, this is what you must do:

'''Step Nine'''

<blockquote>Wait 32 days from the date the divorce order was made. The date will be shown on the first page of the order.</blockquote>

'''Step Ten'''

<blockquote>Prepare your draft Certificate of Divorce and file it in the court registry, together with a Requisition asking the registry to complete the Certificate. Pay the $40 court fee, and grab a chair. The registry will normally complete your Certificate of Divorce while you wait.</blockquote>

===The joint divorce application===

The joint divorce application process is almost exactly the same as the sole divorce application process, except that some of the forms are different, service is not required, and the length of time it takes to get a divorce is about four to eight weeks in total.

These are the main differences between the joint application process and the sole application process:

*The parties are known as claimant 1 and claimant 2.
*A special form, Notice of Family Claim is required.
*Both parties sign the Notice of Family Claim.
*The Notice of Family Claim does not need to be served on anyone, and there is no waiting period that must pass before the application for the divorce order can be made.
*Both parties must swear an affidavit in support of the application for the divorce order.
*All of the documents can be filed at once, although at least one of the affidavits in support of the application must be sworn after everything else is filed, even if only by a few minutes.

If either party withdraws from the joint application process before the divorce order is made, there's a problem. Read the discussion in "What happens if a response or counterclaim are filed?" at the end of this section.

These instructions are for the joint divorce application process:

'''Step One'''

<blockquote>Prepare a joint Notice of Family Claim. Prepare and execute one Divorce Affidavit in support of the application; prepare your blank Registrar's Certificate; prepare and complete your Requisition to apply for the divorce order; and, prepare your draft order. Make two copies of everything. Prepare but do not execute the other Divorce Affidavit.</blockquote>

'''Step Two'''

<blockquote>Go to your local registry of the British Columbia Supreme Court. Bring all the documents listed in Step One and the original of your government-issued Marriage Certificate. Fill out the Registration of Divorce Proceeding form, which will be available at the family and divorce counter. File all of these materials (except the unexecuted affidavit) and pay the $290 court fee. The court will stamp the action number and the court seal on all copies of your joint Notice of Family Claim, keep the original, and give you back the two duplicates. Your Marriage Certificate will go into the court file.</blockquote>

'''Step Three'''

<blockquote>While you're at the registry counter, execute the remaining affidavit in support of the application for divorce, and pay the $40 court fee.</blockquote>

'''Step Four'''

<blockquote>Once you've filed your application, wait four weeks.</blockquote>

'''Step Five'''

<blockquote>Once four weeks have passed, start calling the court registry to see whether your order is ready for you to pick-up. This should take four to eight weeks, depending on how busy the court is. When your order is ready, go to the courthouse to pick the entered order up, and then mail a copy to your ex.</blockquote>

Once you've got your entered divorce order and 31 days have passed, you are officially divorced, and you have a court order bearing the seal of the court to prove it. Some people may find that a Certificate of Divorce is necessary in order to remarry. If you wish to get this Certificate, this is what you must do:

'''Step Six'''

<blockquote>Wait 32 days from the date the order was made. The date will be shown on the first page of the order.</blockquote>

'''Step Seven'''

<blockquote>Prepare your Certificate of Divorce and file it in the court registry, together with a Requisition asking the registry to complete the Certificate. Pay the $40 court fee, and grab a chair. The registry will normally complete your Certificate of Divorce while you wait.</blockquote>

With the exception of the special form, Notice of Family Claim, all of the forms used in the joint process are the same as the sole process, except that the parties aren't called claimant and respondent, they're called claimant 1 and claimant 2.

===Free services===

The Salvation Army's pro bono program and Access Pro Bono offer free meetings with lawyers who can review your forms with you before you file them in court. In some cases, the Salvation Army may also be able to prepare your documents for you. Although the lawyers available through these programs are not likely to prepare your documents, they will give them a check to make sure that the registry will accept them.

The British Columbia Continuing Legal Education Society has published an excellent guide to the desk order divorce process called the Desk Order Divorce Manual, which has samples of the different clauses you may need to complete your court forms. This book is available at your local courthouse library.

===Services that are not free===

====Lawyers====

You're usually best off if you hire a lawyer to handle your divorce for you, as your lawyer will be familiar with the nuances and complications of the desk order divorce process and can give you expert advice about the short- and long-term advantages and disadvantages of the arrangement you've worked out with your spouse. This can be critical where the terms or circumstances of your divorce are unusual or complicated.

Lawyers, however, come at a cost. You should expect that you will be charged fees of anywhere between $500 and $2,000 for your divorce, plus the lawyer's out-of-pocket expenses for things like court fees and photocopying.

====Commercial services====

A local company called Self-Counsel Press publishes a kit for the desk order divorce process. The kit, which costs something like $25 to $35, contains all the forms necessary to apply for a desk order divorce, plus instructions on how to make the application. Make sure that the kit you buy has forms that are current to the changes made on 18 March 2013.

There are a number of commercial services available online that will prepare all of the necessary documents for you, including:

*http://www.divorceoptions.ca
*http://www.untietheknot.ca
*http://www.britishcolumbiadivorce.ca

If I understand things correctly, untietheknot.ca will also file your documents in court for you. A Google search for the phrase "desk order divorce BC" should provide you with a few other options, but whatever you do, make sure you're using a service that offers the forms required for a divorce in British Columbia!

===What happens if a response or counterclaim are filed?===

The do-it-yourself divorce process is based on the idea that either everyone agrees to get divorced or no one is going to object to the divorce. The process will go off the rails if:

*'''Sole Application:''' the respondent files a Response to Family Claim or a Counterclaim; or,
*'''Joint Application:''' a claimant withdraws from the process and files a Response to Family Claim or a Counterclaim.

In either situation, the divorce action will cease to qualify as an ''undefended family law case'' within the meaning of Rule 1-1(1) and cannot proceed as a desk order. The divorce action will continue like any other contested family law case and proceed to trial if a settlement cannot be reached.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/80mh Federal Child Support Guidelines]''

===Links===

* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/divorce.php Legal Services Society’s Family Law Website: Divorce]
* Online Divorce Services:
**[http://www.divorceoptions.ca DivorceOptions.ca]
**[http://www.untietheknot.ca Untie The Knot Divorce Service]
**[http://www.britishcolumbiadivorce.ca Canadian Divorce Online]

{{REVIEWED | reviewer = [[JP Boyd]], March 24, 2013}}

{{JP Boyd on Family Law Navbox|type=chapters}}

[[Category:Marriage, Separation & Divorce]]

{{Creative Commons for JP Boyd}}

Divorce and the Law on Getting Divorced

2013-05-05T22:03:57Z

Gayla Reid: /* The sole divorce application */

{{JP Boyd on Family Law TOC|expanded = separation}}
{{LSSbadge
| resourcetype = more information on
| link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/divorce.php Divorce]
}}Divorce is the legal termination of a marriage by an order of the court. Without this order, a couple will remain married to each other no matter how long they've been separated. Although a divorce order represents the formal conclusion of a marriage, where children are involved or one spouse is financially dependent on the other, issues about the payment of support and the care of the children will continue.

This section provides an overview of the grounds for divorce, and discusses the nature of a divorce order and the effect of foreign divorce orders in Canada. It also reviews the do-it-yourself divorce process, and the court forms used in that process, in enough detail that you can get your own divorce without having to hire a lawyer.

The criteria that must be met to obtain an annulment ― which is different than a divorce order and isn't nearly as simple and straightforward as most people think ― are discussed in the chapter [[Family Relationships]] within the section [[Married Spouses]].

==The grounds for divorce==

Under the federal ''[[Divorce Act]]'' there is really only one reason why you can apply for a divorce order, ''marriage breakdown''. Under s. 8 of the act, there are three reasons why marriage breakdown may have occurred:

#the intentional separation of the spouses for at least one year;
#the adultery of a spouse; and,
#one spouse's treatment of the other with such mental or physical cruelty that it is impossible to continue the marriage.

In Canada, all divorces proceed on a no-fault basis, regardless of the ground of divorce relied upon. ''No-fault'', in this context, means that the reasons for marriage breakdown have nothing at all to do with the court's consideration of issues like custody and support. No matter how upset someone is by a spouse's misbehaviour, it will have no impact on how the legal issues are addressed.

Most divorces are based on separation. The only advantage of seeking a divorce based on cruelty or adultery is that the divorce is available relatively quickly; you needn't wait for a year's worth of separation to pass before you are eligible for the order. However, while you are eligible to begin divorce proceedings as soon as you learn of the adultery or experience the cruelty, you must be able to prove that the other spouse committed the wrongful behaviour you allege.

As you can imagine, few people are prepared to admit that they committed adultery or battered their spouse, and as a result divorces based on these grounds rarely proceed smoothly. In fact, where a court action has dragged on long enough so that more than a year has passed since the parties separated before the matter finally comes to court, some judges will refuse to hear any evidence of the wrongful behaviour and will grant the divorce instead on the basis of the parties' separation.

===Separation===

To obtain a divorce based on separation for a period of at least one year, you and your spouse must have lived separate and apart for that year. The period of living separate and apart can pass while living under the same roof, however the marital qualities of your relationship with your spouse must have ended.

The ''Divorce Act'' provides that a couple can attempt to reconcile and resume married life for up to 90 days during this one-year period. If the couple live together for a total period of more than 90 days with the intention of getting back together, the clock resets and a new one-year period will not start running until after the couple separates again.

===Adultery===

A spouse who is claiming that the other spouse is guilty of adultery must prove this claim in court. Before the court will pronounce the order for divorce, the court must also be satisfied that the party making the claim has not ''condoned'' the adultery or ''connived'' to effect the adultery. If the court is not satisfied, it will not grant the divorce.

Proof of adultery normally consists of an affidavit from either your spouse or the person with whom your spouse committed the adulterous act, admitting to the adultery. You cannot seek a divorce based on your own adulterous conduct.

Many people will have seen the movie "Intolerable Cruelty," which lays a great deal of emphasis on the punitive consequences of adultery, and suggests that spouses caught with their pants down are going to lose everything they have. That might be true in the US, but it certainly isn't true in Canada. In Canada, there are no consequences for marital offences of that nature: you won't lose your house, you won't lose the children, and you won't find yourself living in a cardboard box. Adultery, while relevant as a ground of divorce, plays no role in the court's determination of these other issues.

===Cruelty===

A spouse who claims that the other spouse is guilty of cruelty must prove his or her claim in court. Cruelty can consist of physical abuse or mental abuse, and may also give rise to a claim for an award of damages as a result of the cruelty. Before the court will pronounce the divorce order, it must be satisfied that the party making the claim has not ''condoned'' the cruelty.

Proof of cruelty normally consists of a medical, psychological or psychiatric report, or, in some circumstances, a simple letter from a treating professional describing the abuse.

===Conspiracy, connivance and condonation===

If a court finds that there has been conspiracy, connivance, or condonation in the application for the divorce order, the court will not grant the order. The point of this is to ensure that a couple are not attempting to escape the requirements of the ''Divorce Act'' and cheat the court to get a quick divorce.

If there has been ''condonation'', the marital offence used to found the divorce claim, adultery or cruelty, has been forgiven. If the act has been forgiven, the court cannot pronounce a divorce order since the marital relationship hasn't broken down.

''Conspiracy'' and ''connivance'' are both attempts to cheat the court. A relationship must have legitimately broken down before the court will officially dissolve it; anything else would be a fraud upon the court. ''Conspiracy'' means that the spouses have worked together to achieve the wrongful act providing the ground for divorce. This could mean, for example, an agreement between the spouses for one of them to have sex with someone else in order to claim adultery as a ground of divorce. ''Connivance'' means to arrange for the wrongful act to occur. For example, this could include one spouse arranging for the other to be seduced by someone else in order to claim adultery as a ground of divorce.

===Child support===

The court is required, under s. 11(1)(b) of the ''Divorce Act'', to satisfy itself that "reasonable arrangements" have been made for the support of the children before it can grant an order for divorce. As you might expect, a ''reasonable arrangement'' usually means that child support is being paid according to the [[Child Support Guidelines]]. If you have children, you will have to prove that the children are being provided for as the Guidelines require before you can get a divorce. Remember that under the Guidelines, the table amount of child support payable for incomes of less than $10,800 per year is zero.

The only possible exception to this rule would be if the parent to whom child support is payable cannot be found, and the child support payments therefore cannot be paid. In such circumstances the court may make a divorce order that doesn't refer to child support, or it may make an order that merely refers to the payor's obligation to pay child support without fixing an amount payable.

==The divorce order==

In order to get a divorce order, the court must be satisfied that:

*the marriage legally exists,
*at least one of the parties has been ordinarily resident in British Columbia for at least one year before the proceeding began,
*the ground on which marriage breakdown in claimed has been proven, and,
*if there are children, an adequate amount of child support is being paid.

It is possible to oppose an application for a divorce order. Practically speaking, however, by the time the application gets before a judge, the responding party has usually come to realize that a divorce is inevitable. If the court is satisfied that the applicant is entitled to his or her order because the grounds for the divorce have been proven, the divorce is usually granted despite any objections by the other spouse.

===Corollary relief===

An order for divorce can be made on its own or together with ''corollary relief''. Typical orders for corollary relief include orders about the care of children, child support, and spousal support.

Divorce orders are usually made after all of the corollary issues, if any, have been dealt with, either as a result of a trial or a settlement reached following negotiations. The court will be reluctant to make a divorce order until all of the legal issues have been addressed.

===The appeal period===

Orders for divorce usually contain a term that "this order shall not take effect until the 31st day after its pronouncement." This is to allow the appeal period to expire. Once those 31 days have passed, however, the parties are officially divorced and are free to remarry if they wish.

It is possible to abridge this appeal period, if the divorce must take effect sooner for some urgent reason such as remarriage. If this is the case, you should advise the court of the need for haste, and a waiver of appeal will have to be filed.

===Certificate of divorce===

Once the appeal period has expired, either party may apply to the court, for a small filing fee, for a Certificate of Divorce. This is, strictly speaking, unnecessary, as the order is itself sufficient proof of divorce. Nevertheless, people often want this certificate to obtain a sense of closure, or because they expect to marry within the next couple of years, or because they may wish to prove they are divorced without having to disclose the other terms of their divorce order. Most family law lawyers take care to prepare Certificates of Divorce nicely in a format suitable for framing.

==Foreign divorce orders==

Section 22(1) of the ''Divorce Act'' deals with the effect in Canada of divorces obtained outside Canada. In a nutshell, if a divorce was properly granted by the foreign country the parties will also be considered to be divorced here, without the need to obtain a Canadian divorce order.

Of course, there is a small catch. Either spouse must have been "ordinarily resident" in the country in which the divorce was obtained for at least one year before the divorce proceedings started. In other words, if you've lived in Sri Lanka for less than a year before you started your application for divorce, your divorce may not be recognized in Canada even though it's perfectly good in Sri Lanka. As long as you had lived in Sri Lanka for more than one year before you started your application, your divorce there will be valid in Canada.

Even if a foreign divorce isn't good under Canadian law, everyone will usually accept the fact that the spouse is divorced. Whether the divorce meets Canadian requirements will only ever become an issue if one of the spouses later claims that the divorce is not valid. This can have some fairly serious consequences, mostly involving the division of property and pensions. You can find more information about the property entitlements of married spouses in the chapter [[Property & Debt in Family Law Matters]] within the section [[Dividing Property & Debt in Family Law Matters]].

==The do-it-yourself divorce==

The only way to obtain an order for divorce is by starting a court proceeding; you must sue your spouse if you want to get divorced. The do-it-yourself process, called the ''desk order divorce process'', allows you to obtain a final order for divorce without ever having to appear in court, and the order can deal with all of the issues between you and your spouse, from divorce to the division of property to child support.

You can get your divorce yourself using the desk order divorce process, without having to retain a lawyer. While some of the court forms can be a bit daunting, there are plenty of resources, such as this website, that can help you unravel the mysteries and complete the process on your own.

Generally speaking, a desk order divorce is appropriate in two situations:

#when the only issue between you and your spouse is getting a divorce; or,
#when you have other issues, but those have been settled, either through a separation agreement or an agreement about the terms of a consent order.

In the first case, a desk order application will be for a divorce alone. In the second case, a desk order application will be an application for a divorce plus ''corollary relief'', that is, orders apart from the divorce order itself, such as orders dealing with care of children, support, or the division of assets.

Most court proceedings go like this: the claimant files a Notice of Family Claim and serves it on the respondent; the respondent then files a Response to Family Claim and sometimes a Counterclaim. If the respondent fails to file a Response to Family Claim, the claimant's court proceeding is said to be ''uncontested''. This means that the respondent is assumed to either agree with the relief sought by the claimant or to have chosen not to defend the claim. In such circumstances, the claimant is free to seek a ''default judgment'' against the respondent.

A desk order divorce application is essentially an application for a default judgment, whether the claimant's court proceeding is for a divorce order alone or for a divorce order with corollary relief, and is governed by Rule 10-10 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules].

For a brief summary of this process, go to the ''How Do I?'' section of this resource and read [[How Do I Get Divorced?]] It's located under ''Marriage, Separation & Divorce''.

There are two types of desk order divorce actions:

#the sole application process, in which only one spouse is responsible for ushering the process through; and,
#the joint application process, in which the spouses work together to get the job done.

There are a few important differences between sole applications and joint applications.

*Joint applications are quicker and cheaper, but the spouses will have to cooperate with each other. In a sole application, no cooperation is required.
*A sole application takes a little longer since the person bringing the action has to serve the other spouse with the Notice of Family Claim and wait 40 days before proceeding. In a joint application, service is not necessary and you can apply for the divorce order right away.
*In a sole application, the spouses are called the claimant and respondent. In a joint application, the spouses are called claimant 1 and claimant 2.
*In a joint application, both spouses must sign the Notice of Family Claim, and both must execute an affidavit for the application for the divorce order.

===The sole divorce application===

These instructions are for the sole divorce application process:

'''Step One'''

<blockquote>Prepare your Notice of Family Claim. Make three copies of the original.</blockquote>

'''Step Two'''

<blockquote>Go to your local registry of the British Columbia Supreme Court. Bring the original Notice of Family Claim and the three copies you have made of it. Also bring the original of your government-issued Marriage Certificate. Fill out the Registration of Divorce Proceeding form, which will be available at the courthouse. File all of these materials and pay the $210 court fee. The court will stamp the action number and the court seal on all copies of your Notice of Family Claim, keep the original, and give you back the three duplicates. Your Marriage Certificate will go into the court file.</blockquote>

'''Step Three'''

<blockquote>Serve your ex with your Notice of Family Claim. You cannot serve your ex yourself; you must arrange for someone else to do it. Give the person who will be your process server two copies of your Notice of Family Claim, along with a photograph of your ex. The process server will serve one copy of the materials on your ex, and will use the photograph and the remaining copy in his or her Affidavit of Personal Service to prove that your ex was served.</blockquote>

'''Step Four'''

<blockquote>Once your ex is served, wait 40 days. Technically, you only need to wait 31 days from the date of service, but it doesn't hurt to add a few days just to be sure. If your ex files a Response to Family Claim or Counterclaim in this period, there's a problem. Read the discussion in "What happens if a response or counterclaim are filed?" at the end of this section.</blockquote>

'''Step Five'''

<blockquote>Prepare your Requisition asking the court for the divorce order, your Divorce Affidavit in support of the application, a draft of the order you want the court to make, and the Registrar's Certificate. If you have children, you will also have to prepare a Child Support Affidavit, which sets out the details of your income and your spouse's income and the terms on which child support will (or won't) be paid.</blockquote>

'''Step Six'''

<blockquote>Go to the court registry you filed your materials at, and file your Requisition, your Affidavit, your Child Support Affidavit if required, your Registrar's Certificate, your draft order, and your process server's Affidavit of Personal Service. Pay the $80 court fee.</blockquote>

'''Step Seven'''

<blockquote>Once you've filed your application, wait four weeks.</blockquote>

'''Step Eight'''

<blockquote>Start calling the court registry to see whether your order is ready for you to pick-up. This should take four to eight weeks, depending on how busy the court is. When your order is ready, go to the courthouse to get the entered order, and then mail a copy to your ex.</blockquote>

Once you've got your entered divorce order and 31 days have passed, you are officially divorced, and you have a court order bearing the seal of the court to prove it. Some people may find that a Certificate of Divorce is necessary in order to remarry. If you wish to get this Certificate, this is what you must do:

'''Step Nine'''

<blockquote>Wait 32 days from the date the divorce order was made. The date will be shown on the first page of the order.</blockquote>

'''Step Ten'''

<blockquote>Prepare your draft Certificate of Divorce and file it in the court registry, together with a Requisition asking the registry to complete the Certificate. Pay the $40 court fee, and grab a chair. The registry will normally complete your Certificate of Divorce while you wait.</blockquote>

===The joint divorce application===

The joint divorce application process is almost exactly the same as the sole divorce application process, except that some of the forms are different, service is not required, and the length of time it takes to get a divorce is about four to eight weeks in total.

These are the main differences between the joint application process and the sole application process:

*The parties are known as claimant 1 and claimant 2.
*A special form, Notice of Family Claim is required.
*Both parties sign the Notice of Family Claim.
*The Notice of Family Claim does not need to be served on anyone, and there is no waiting period that must pass before the application for the divorce order can be made.
*Both parties must swear an affidavit in support of the application for the divorce order.
*All of the documents can be filed at once, although at least one of the affidavits in support of the application must be sworn after everything else is filed, even if only by a few minutes.

If either party withdraws from the joint application process before the divorce order is made, there's a problem. Read the discussion in "What happens if a response or counterclaim are filed?" at the end of this section.

These instructions are for the joint divorce application process:

'''Step One'''

<blockquote>Prepare a joint Notice of Family Claim. Prepare and execute one Divorce Affidavit in support of the application; prepare your blank Registrar's Certificate; prepare and complete your Requisition to apply for the divorce order; and, prepare your draft order. Make two copies of everything. Prepare but do not execute the other Divorce Affidavit.</blockquote>

'''Step Two'''

<blockquote>Go to your local registry of the British Columbia Supreme Court. Bring all the documents listed in Step One and the original of your government-issued Marriage Certificate. Fill out the Registration of Divorce Proceeding form, which will be available at the family and divorce counter. File all of these materials (except the unexecuted affidavit) and pay the $290 court fee. The court will stamp the action number and the court seal on all copies of your Joint Notice of Family Claim, keep the original, and give you back the two duplicates. Your Marriage Certificate will go into the court file.</blockquote>

'''Step Three'''

<blockquote>While you're at the registry counter, execute the remaining affidavit in support of the application for divorce, and pay the $40 court fee.</blockquote>

'''Step Four'''

<blockquote>Once you've filed your application, wait four weeks.</blockquote>

'''Step Five'''

<blockquote>Once four weeks have passed, start calling the court registry to see whether your order is ready for you to pick-up. This should take four to eight weeks, depending on how busy the court is. When your order is ready, go to the courthouse to pick the entered order up, and then mail a copy to your ex.</blockquote>

Once you've got your entered divorce order and 31 days have passed, you are officially divorced, and you have a court order bearing the seal of the court to prove it. Some people may find that a Certificate of Divorce is necessary in order to remarry. If you wish to get this Certificate, this is what you must do:

'''Step Six'''

<blockquote>Wait 32 days from the date the order was made. The date will be shown on the first page of the order.</blockquote>

'''Step Seven'''

<blockquote>Prepare your Certificate of Divorce and file it in the court registry, together with a Requisition asking the registry to complete the Certificate. Pay the $40 court fee, and grab a chair. The registry will normally complete your Certificate of Divorce while you wait.</blockquote>

With the exception of the special form, Notice of Family Claim, all of the forms used in the joint process are the same as the sole process, except that the parties aren't called claimant and respondent, they're called claimant 1 and claimant 2.

===Free services===

The Salvation Army's pro bono program and Access Pro Bono offer free meetings with lawyers who can review your forms with you before you file them in court. In some cases, the Salvation Army may also be able to prepare your documents for you. Although the lawyers available through these programs are not likely to prepare your documents, they will give them a check to make sure that the registry will accept them.

The British Columbia Continuing Legal Education Society has published an excellent guide to the desk order divorce process called the Desk Order Divorce Manual, which has samples of the different clauses you may need to complete your court forms. This book is available at your local courthouse library.

===Services that are not free===

====Lawyers====

You're usually best off if you hire a lawyer to handle your divorce for you, as your lawyer will be familiar with the nuances and complications of the desk order divorce process and can give you expert advice about the short- and long-term advantages and disadvantages of the arrangement you've worked out with your spouse. This can be critical where the terms or circumstances of your divorce are unusual or complicated.

Lawyers, however, come at a cost. You should expect that you will be charged fees of anywhere between $500 and $2,000 for your divorce, plus the lawyer's out-of-pocket expenses for things like court fees and photocopying.

====Commercial services====

A local company called Self-Counsel Press publishes a kit for the desk order divorce process. The kit, which costs something like $25 to $35, contains all the forms necessary to apply for a desk order divorce, plus instructions on how to make the application. Make sure that the kit you buy has forms that are current to the changes made on 18 March 2013.

There are a number of commercial services available online that will prepare all of the necessary documents for you, including:

*http://www.divorceoptions.ca
*http://www.untietheknot.ca
*http://www.britishcolumbiadivorce.ca

If I understand things correctly, untietheknot.ca will also file your documents in court for you. A Google search for the phrase "desk order divorce BC" should provide you with a few other options, but whatever you do, make sure you're using a service that offers the forms required for a divorce in British Columbia!

===What happens if a response or counterclaim are filed?===

The do-it-yourself divorce process is based on the idea that either everyone agrees to get divorced or no one is going to object to the divorce. The process will go off the rails if:

*'''Sole Application:''' the respondent files a Response to Family Claim or a Counterclaim; or,
*'''Joint Application:''' a claimant withdraws from the process and files a Response to Family Claim or a Counterclaim.

In either situation, the divorce action will cease to qualify as an ''undefended family law case'' within the meaning of Rule 1-1(1) and cannot proceed as a desk order. The divorce action will continue like any other contested family law case and proceed to trial if a settlement cannot be reached.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/80mh Federal Child Support Guidelines]''

===Links===

* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/divorce.php Legal Services Society’s Family Law Website: Divorce]
* Online Divorce Services:
**[http://www.divorceoptions.ca DivorceOptions.ca]
**[http://www.untietheknot.ca Untie The Knot Divorce Service]
**[http://www.britishcolumbiadivorce.ca Canadian Divorce Online]

{{REVIEWED | reviewer = [[JP Boyd]], March 24, 2013}}

{{JP Boyd on Family Law Navbox|type=chapters}}

[[Category:Marriage, Separation & Divorce]]

{{Creative Commons for JP Boyd}}

Divorce and the Law on Getting Divorced

2013-05-05T22:03:23Z

Gayla Reid: /* The joint divorce application */

{{JP Boyd on Family Law TOC|expanded = separation}}
{{LSSbadge
| resourcetype = more information on
| link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/divorce.php Divorce]
}}Divorce is the legal termination of a marriage by an order of the court. Without this order, a couple will remain married to each other no matter how long they've been separated. Although a divorce order represents the formal conclusion of a marriage, where children are involved or one spouse is financially dependent on the other, issues about the payment of support and the care of the children will continue.

This section provides an overview of the grounds for divorce, and discusses the nature of a divorce order and the effect of foreign divorce orders in Canada. It also reviews the do-it-yourself divorce process, and the court forms used in that process, in enough detail that you can get your own divorce without having to hire a lawyer.

The criteria that must be met to obtain an annulment ― which is different than a divorce order and isn't nearly as simple and straightforward as most people think ― are discussed in the chapter [[Family Relationships]] within the section [[Married Spouses]].

==The grounds for divorce==

Under the federal ''[[Divorce Act]]'' there is really only one reason why you can apply for a divorce order, ''marriage breakdown''. Under s. 8 of the act, there are three reasons why marriage breakdown may have occurred:

#the intentional separation of the spouses for at least one year;
#the adultery of a spouse; and,
#one spouse's treatment of the other with such mental or physical cruelty that it is impossible to continue the marriage.

In Canada, all divorces proceed on a no-fault basis, regardless of the ground of divorce relied upon. ''No-fault'', in this context, means that the reasons for marriage breakdown have nothing at all to do with the court's consideration of issues like custody and support. No matter how upset someone is by a spouse's misbehaviour, it will have no impact on how the legal issues are addressed.

Most divorces are based on separation. The only advantage of seeking a divorce based on cruelty or adultery is that the divorce is available relatively quickly; you needn't wait for a year's worth of separation to pass before you are eligible for the order. However, while you are eligible to begin divorce proceedings as soon as you learn of the adultery or experience the cruelty, you must be able to prove that the other spouse committed the wrongful behaviour you allege.

As you can imagine, few people are prepared to admit that they committed adultery or battered their spouse, and as a result divorces based on these grounds rarely proceed smoothly. In fact, where a court action has dragged on long enough so that more than a year has passed since the parties separated before the matter finally comes to court, some judges will refuse to hear any evidence of the wrongful behaviour and will grant the divorce instead on the basis of the parties' separation.

===Separation===

To obtain a divorce based on separation for a period of at least one year, you and your spouse must have lived separate and apart for that year. The period of living separate and apart can pass while living under the same roof, however the marital qualities of your relationship with your spouse must have ended.

The ''Divorce Act'' provides that a couple can attempt to reconcile and resume married life for up to 90 days during this one-year period. If the couple live together for a total period of more than 90 days with the intention of getting back together, the clock resets and a new one-year period will not start running until after the couple separates again.

===Adultery===

A spouse who is claiming that the other spouse is guilty of adultery must prove this claim in court. Before the court will pronounce the order for divorce, the court must also be satisfied that the party making the claim has not ''condoned'' the adultery or ''connived'' to effect the adultery. If the court is not satisfied, it will not grant the divorce.

Proof of adultery normally consists of an affidavit from either your spouse or the person with whom your spouse committed the adulterous act, admitting to the adultery. You cannot seek a divorce based on your own adulterous conduct.

Many people will have seen the movie "Intolerable Cruelty," which lays a great deal of emphasis on the punitive consequences of adultery, and suggests that spouses caught with their pants down are going to lose everything they have. That might be true in the US, but it certainly isn't true in Canada. In Canada, there are no consequences for marital offences of that nature: you won't lose your house, you won't lose the children, and you won't find yourself living in a cardboard box. Adultery, while relevant as a ground of divorce, plays no role in the court's determination of these other issues.

===Cruelty===

A spouse who claims that the other spouse is guilty of cruelty must prove his or her claim in court. Cruelty can consist of physical abuse or mental abuse, and may also give rise to a claim for an award of damages as a result of the cruelty. Before the court will pronounce the divorce order, it must be satisfied that the party making the claim has not ''condoned'' the cruelty.

Proof of cruelty normally consists of a medical, psychological or psychiatric report, or, in some circumstances, a simple letter from a treating professional describing the abuse.

===Conspiracy, connivance and condonation===

If a court finds that there has been conspiracy, connivance, or condonation in the application for the divorce order, the court will not grant the order. The point of this is to ensure that a couple are not attempting to escape the requirements of the ''Divorce Act'' and cheat the court to get a quick divorce.

If there has been ''condonation'', the marital offence used to found the divorce claim, adultery or cruelty, has been forgiven. If the act has been forgiven, the court cannot pronounce a divorce order since the marital relationship hasn't broken down.

''Conspiracy'' and ''connivance'' are both attempts to cheat the court. A relationship must have legitimately broken down before the court will officially dissolve it; anything else would be a fraud upon the court. ''Conspiracy'' means that the spouses have worked together to achieve the wrongful act providing the ground for divorce. This could mean, for example, an agreement between the spouses for one of them to have sex with someone else in order to claim adultery as a ground of divorce. ''Connivance'' means to arrange for the wrongful act to occur. For example, this could include one spouse arranging for the other to be seduced by someone else in order to claim adultery as a ground of divorce.

===Child support===

The court is required, under s. 11(1)(b) of the ''Divorce Act'', to satisfy itself that "reasonable arrangements" have been made for the support of the children before it can grant an order for divorce. As you might expect, a ''reasonable arrangement'' usually means that child support is being paid according to the [[Child Support Guidelines]]. If you have children, you will have to prove that the children are being provided for as the Guidelines require before you can get a divorce. Remember that under the Guidelines, the table amount of child support payable for incomes of less than $10,800 per year is zero.

The only possible exception to this rule would be if the parent to whom child support is payable cannot be found, and the child support payments therefore cannot be paid. In such circumstances the court may make a divorce order that doesn't refer to child support, or it may make an order that merely refers to the payor's obligation to pay child support without fixing an amount payable.

==The divorce order==

In order to get a divorce order, the court must be satisfied that:

*the marriage legally exists,
*at least one of the parties has been ordinarily resident in British Columbia for at least one year before the proceeding began,
*the ground on which marriage breakdown in claimed has been proven, and,
*if there are children, an adequate amount of child support is being paid.

It is possible to oppose an application for a divorce order. Practically speaking, however, by the time the application gets before a judge, the responding party has usually come to realize that a divorce is inevitable. If the court is satisfied that the applicant is entitled to his or her order because the grounds for the divorce have been proven, the divorce is usually granted despite any objections by the other spouse.

===Corollary relief===

An order for divorce can be made on its own or together with ''corollary relief''. Typical orders for corollary relief include orders about the care of children, child support, and spousal support.

Divorce orders are usually made after all of the corollary issues, if any, have been dealt with, either as a result of a trial or a settlement reached following negotiations. The court will be reluctant to make a divorce order until all of the legal issues have been addressed.

===The appeal period===

Orders for divorce usually contain a term that "this order shall not take effect until the 31st day after its pronouncement." This is to allow the appeal period to expire. Once those 31 days have passed, however, the parties are officially divorced and are free to remarry if they wish.

It is possible to abridge this appeal period, if the divorce must take effect sooner for some urgent reason such as remarriage. If this is the case, you should advise the court of the need for haste, and a waiver of appeal will have to be filed.

===Certificate of divorce===

Once the appeal period has expired, either party may apply to the court, for a small filing fee, for a Certificate of Divorce. This is, strictly speaking, unnecessary, as the order is itself sufficient proof of divorce. Nevertheless, people often want this certificate to obtain a sense of closure, or because they expect to marry within the next couple of years, or because they may wish to prove they are divorced without having to disclose the other terms of their divorce order. Most family law lawyers take care to prepare Certificates of Divorce nicely in a format suitable for framing.

==Foreign divorce orders==

Section 22(1) of the ''Divorce Act'' deals with the effect in Canada of divorces obtained outside Canada. In a nutshell, if a divorce was properly granted by the foreign country the parties will also be considered to be divorced here, without the need to obtain a Canadian divorce order.

Of course, there is a small catch. Either spouse must have been "ordinarily resident" in the country in which the divorce was obtained for at least one year before the divorce proceedings started. In other words, if you've lived in Sri Lanka for less than a year before you started your application for divorce, your divorce may not be recognized in Canada even though it's perfectly good in Sri Lanka. As long as you had lived in Sri Lanka for more than one year before you started your application, your divorce there will be valid in Canada.

Even if a foreign divorce isn't good under Canadian law, everyone will usually accept the fact that the spouse is divorced. Whether the divorce meets Canadian requirements will only ever become an issue if one of the spouses later claims that the divorce is not valid. This can have some fairly serious consequences, mostly involving the division of property and pensions. You can find more information about the property entitlements of married spouses in the chapter [[Property & Debt in Family Law Matters]] within the section [[Dividing Property & Debt in Family Law Matters]].

==The do-it-yourself divorce==

The only way to obtain an order for divorce is by starting a court proceeding; you must sue your spouse if you want to get divorced. The do-it-yourself process, called the ''desk order divorce process'', allows you to obtain a final order for divorce without ever having to appear in court, and the order can deal with all of the issues between you and your spouse, from divorce to the division of property to child support.

You can get your divorce yourself using the desk order divorce process, without having to retain a lawyer. While some of the court forms can be a bit daunting, there are plenty of resources, such as this website, that can help you unravel the mysteries and complete the process on your own.

Generally speaking, a desk order divorce is appropriate in two situations:

#when the only issue between you and your spouse is getting a divorce; or,
#when you have other issues, but those have been settled, either through a separation agreement or an agreement about the terms of a consent order.

In the first case, a desk order application will be for a divorce alone. In the second case, a desk order application will be an application for a divorce plus ''corollary relief'', that is, orders apart from the divorce order itself, such as orders dealing with care of children, support, or the division of assets.

Most court proceedings go like this: the claimant files a Notice of Family Claim and serves it on the respondent; the respondent then files a Response to Family Claim and sometimes a Counterclaim. If the respondent fails to file a Response to Family Claim, the claimant's court proceeding is said to be ''uncontested''. This means that the respondent is assumed to either agree with the relief sought by the claimant or to have chosen not to defend the claim. In such circumstances, the claimant is free to seek a ''default judgment'' against the respondent.

A desk order divorce application is essentially an application for a default judgment, whether the claimant's court proceeding is for a divorce order alone or for a divorce order with corollary relief, and is governed by Rule 10-10 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules].

For a brief summary of this process, go to the ''How Do I?'' section of this resource and read [[How Do I Get Divorced?]] It's located under ''Marriage, Separation & Divorce''.

There are two types of desk order divorce actions:

#the sole application process, in which only one spouse is responsible for ushering the process through; and,
#the joint application process, in which the spouses work together to get the job done.

There are a few important differences between sole applications and joint applications.

*Joint applications are quicker and cheaper, but the spouses will have to cooperate with each other. In a sole application, no cooperation is required.
*A sole application takes a little longer since the person bringing the action has to serve the other spouse with the Notice of Family Claim and wait 40 days before proceeding. In a joint application, service is not necessary and you can apply for the divorce order right away.
*In a sole application, the spouses are called the claimant and respondent. In a joint application, the spouses are called claimant 1 and claimant 2.
*In a joint application, both spouses must sign the Notice of Family Claim, and both must execute an affidavit for the application for the divorce order.

===The sole divorce application===

These instructions are for the sole divorce application process:

'''Step One'''

<blockquote>Prepare your Notice of Family Claim. Make three copies of the original.</blockquote>

'''Step Two'''

<blockquote>Go to your local registry of the British Columbia Supreme Court. Bring the original Notice of Family Claim and the three copies you have made of it. Also bring the original of your government-issued Marriage Certificate. Fill out the Registration of Divorce Proceeding form, which will be available at the courthouse. File all of these materials and pay the $210 court fee. The court will stamp the action number and the court seal on all copies of your Notice of Family Claim, keep the original, and give you back the three duplicates. Your Marriage Certificate will go into the court file.</blockquote>

'''Step Three'''

<blockquote>Serve your ex with your Notice of Family Claim. You cannot serve your ex yourself; you must arrange for someone else to do it. Give the person who will be your process server two copies of your Notice of Family Claim, along with a photograph of your ex. The process server will serve one copy of the materials on your ex, and will use the photograph and the remaining copy in his or her Affidavit of Personal Service to prove that your ex was served.</blockquote>

'''Step Four'''

<blockquote>Once your ex is served, wait 40 days. Technically, you only need to wait 31 days from the date of service, but it doesn't hurt to add a few days just to be sure. If your ex files a Response to Family Claim or Counterclaim in this period, there's a problem. Read the discussion in "What happens if a response or counterclaim are filed?" at the end of this section.</blockquote>

'''Step Five'''

<blockquote>Prepare your Requisition asking the court for the divorce order, your Divorce Affidavit in support of the application, a draft of the order you want the court to make, and the Registrar's Certificate. If you have children, you will also have to prepare a Child Support Affidavit, which sets out the details of your income and your spouse's income and the terms on which child support will (or won't) be paid.</blockquote>

'''Step Six'''

<blockquote>Go to the court registry you filed your materials at, and file your Requisition, your Affidavit, your Child Support Affidavit if required, your Registrar's Certificate, your draft order, and your process server's Affidavit of Personal Service. Pay the $80 court fee.</blockquote>

'''Step Seven'''

<blockquote>Once you've filed your application, wait four weeks.</blockquote>

'''Step Eight'''

<blockquote>Start calling the court registry to see whether your order is ready for you to pick-up. This should take four to eight weeks, depending on how busy the court is. When your order is ready, go to the courthouse to get the entered order, and then mail a copy to your ex.</blockquote>

Once you've got your entered divorce order and 31 days have passed, you are officially divorced, and you have a court order bearing the seal of the court to prove it. Some people may find that a Certificate of Divorce is necessary in order to remarry. If you wish to get this Certificate, this is what you must do:

'''Step Nine'''

<blockquote>Wait 32 days from the date the divorce order was made. The date will be shown on the first page of the order.</blockquote>

'''Step Ten'''

<blockquote>Prepare your draft Certificate of Divorce and file it in the court registry, together with a Requisition asking the registry to complete the Certificate. Pay the $40 court fee, and grab a chair. The registry will normally complete your Certificate of Divorce while you wait.</blockquote>

===The joint divorce application===

The joint divorce application process is almost exactly the same as the sole divorce application process, except that some of the forms are different, service is not required, and the length of time it takes to get a divorce is about four to eight weeks in total.

These are the main differences between the joint application process and the sole application process:

*The parties are known as claimant 1 and claimant 2.
*A special form, Notice of Family Claim is required.
*Both parties sign the Notice of Family Claim.
*The Notice of Family Claim does not need to be served on anyone, and there is no waiting period that must pass before the application for the divorce order can be made.
*Both parties must swear an affidavit in support of the application for the divorce order.
*All of the documents can be filed at once, although at least one of the affidavits in support of the application must be sworn after everything else is filed, even if only by a few minutes.

If either party withdraws from the joint application process before the divorce order is made, there's a problem. Read the discussion in "What happens if a response or counterclaim are filed?" at the end of this section.

These instructions are for the joint divorce application process:

'''Step One'''

<blockquote>Prepare a joint Notice of Family Claim. Prepare and execute one Divorce Affidavit in support of the application; prepare your blank Registrar's Certificate; prepare and complete your Requisition to apply for the divorce order; and, prepare your draft order. Make two copies of everything. Prepare but do not execute the other Divorce Affidavit.</blockquote>

'''Step Two'''

<blockquote>Go to your local registry of the British Columbia Supreme Court. Bring all the documents listed in Step One and the original of your government-issued Marriage Certificate. Fill out the Registration of Divorce Proceeding form, which will be available at the family and divorce counter. File all of these materials (except the unexecuted affidavit) and pay the $290 court fee. The court will stamp the action number and the court seal on all copies of your Joint Notice of Family Claim, keep the original, and give you back the two duplicates. Your Marriage Certificate will go into the court file.</blockquote>

'''Step Three'''

<blockquote>While you're at the registry counter, execute the remaining affidavit in support of the application for divorce, and pay the $40 court fee.</blockquote>

'''Step Four'''

<blockquote>Once you've filed your application, wait four weeks.</blockquote>

'''Step Five'''

<blockquote>Once four weeks have passed, start calling the court registry to see whether your order is ready for you to pick-up. This should take four to eight weeks, depending on how busy the court is. When your order is ready, go to the courthouse to pick the entered order up, and then mail a copy to your ex.</blockquote>

Once you've got your entered divorce order and 31 days have passed, you are officially divorced, and you have a court order bearing the seal of the court to prove it. Some people may find that a Certificate of Divorce is necessary in order to remarry. If you wish to get this Certificate, this is what you must do:

'''Step Six'''

<blockquote>Wait 32 days from the date the order was made. The date will be shown on the first page of the order.</blockquote>

'''Step Seven'''

<blockquote>Prepare your Certificate of Divorce and file it in the court registry, together with a Requisition asking the registry to complete the Certificate. Pay the $40 court fee, and grab a chair. The registry will normally complete your Certificate of Divorce while you wait.</blockquote>

With the exception of the special form, Notice of Family Claim, all of the forms used in the joint process are the same as the sole process, except that the parties aren't called claimant and respondent, they're called claimant 1 and claimant 2.

===Free services===

The Salvation Army's pro bono program and Access Pro Bono offer free meetings with lawyers who can review your forms with you before you file them in court. In some cases, the Salvation Army may also be able to prepare your documents for you. Although the lawyers available through these programs are not likely to prepare your documents, they will give them a check to make sure that the registry will accept them.

The British Columbia Continuing Legal Education Society has published an excellent guide to the desk order divorce process called the Desk Order Divorce Manual, which has samples of the different clauses you may need to complete your court forms. This book is available at your local courthouse library.

===Services that are not free===

====Lawyers====

You're usually best off if you hire a lawyer to handle your divorce for you, as your lawyer will be familiar with the nuances and complications of the desk order divorce process and can give you expert advice about the short- and long-term advantages and disadvantages of the arrangement you've worked out with your spouse. This can be critical where the terms or circumstances of your divorce are unusual or complicated.

Lawyers, however, come at a cost. You should expect that you will be charged fees of anywhere between $500 and $2,000 for your divorce, plus the lawyer's out-of-pocket expenses for things like court fees and photocopying.

====Commercial services====

A local company called Self-Counsel Press publishes a kit for the desk order divorce process. The kit, which costs something like $25 to $35, contains all the forms necessary to apply for a desk order divorce, plus instructions on how to make the application. Make sure that the kit you buy has forms that are current to the changes made on 18 March 2013.

There are a number of commercial services available online that will prepare all of the necessary documents for you, including:

*http://www.divorceoptions.ca
*http://www.untietheknot.ca
*http://www.britishcolumbiadivorce.ca

If I understand things correctly, untietheknot.ca will also file your documents in court for you. A Google search for the phrase "desk order divorce BC" should provide you with a few other options, but whatever you do, make sure you're using a service that offers the forms required for a divorce in British Columbia!

===What happens if a response or counterclaim are filed?===

The do-it-yourself divorce process is based on the idea that either everyone agrees to get divorced or no one is going to object to the divorce. The process will go off the rails if:

*'''Sole Application:''' the respondent files a Response to Family Claim or a Counterclaim; or,
*'''Joint Application:''' a claimant withdraws from the process and files a Response to Family Claim or a Counterclaim.

In either situation, the divorce action will cease to qualify as an ''undefended family law case'' within the meaning of Rule 1-1(1) and cannot proceed as a desk order. The divorce action will continue like any other contested family law case and proceed to trial if a settlement cannot be reached.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/80mh Federal Child Support Guidelines]''

===Links===

* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/divorce.php Legal Services Society’s Family Law Website: Divorce]
* Online Divorce Services:
**[http://www.divorceoptions.ca DivorceOptions.ca]
**[http://www.untietheknot.ca Untie The Knot Divorce Service]
**[http://www.britishcolumbiadivorce.ca Canadian Divorce Online]

{{REVIEWED | reviewer = [[JP Boyd]], March 24, 2013}}

{{JP Boyd on Family Law Navbox|type=chapters}}

[[Category:Marriage, Separation & Divorce]]

{{Creative Commons for JP Boyd}}

Divorce and the Law on Getting Divorced

2013-05-05T22:02:26Z

Gayla Reid: /* The sole divorce application */

{{JP Boyd on Family Law TOC|expanded = separation}}
{{LSSbadge
| resourcetype = more information on
| link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/divorce.php Divorce]
}}Divorce is the legal termination of a marriage by an order of the court. Without this order, a couple will remain married to each other no matter how long they've been separated. Although a divorce order represents the formal conclusion of a marriage, where children are involved or one spouse is financially dependent on the other, issues about the payment of support and the care of the children will continue.

This section provides an overview of the grounds for divorce, and discusses the nature of a divorce order and the effect of foreign divorce orders in Canada. It also reviews the do-it-yourself divorce process, and the court forms used in that process, in enough detail that you can get your own divorce without having to hire a lawyer.

The criteria that must be met to obtain an annulment ― which is different than a divorce order and isn't nearly as simple and straightforward as most people think ― are discussed in the chapter [[Family Relationships]] within the section [[Married Spouses]].

==The grounds for divorce==

Under the federal ''[[Divorce Act]]'' there is really only one reason why you can apply for a divorce order, ''marriage breakdown''. Under s. 8 of the act, there are three reasons why marriage breakdown may have occurred:

#the intentional separation of the spouses for at least one year;
#the adultery of a spouse; and,
#one spouse's treatment of the other with such mental or physical cruelty that it is impossible to continue the marriage.

In Canada, all divorces proceed on a no-fault basis, regardless of the ground of divorce relied upon. ''No-fault'', in this context, means that the reasons for marriage breakdown have nothing at all to do with the court's consideration of issues like custody and support. No matter how upset someone is by a spouse's misbehaviour, it will have no impact on how the legal issues are addressed.

Most divorces are based on separation. The only advantage of seeking a divorce based on cruelty or adultery is that the divorce is available relatively quickly; you needn't wait for a year's worth of separation to pass before you are eligible for the order. However, while you are eligible to begin divorce proceedings as soon as you learn of the adultery or experience the cruelty, you must be able to prove that the other spouse committed the wrongful behaviour you allege.

As you can imagine, few people are prepared to admit that they committed adultery or battered their spouse, and as a result divorces based on these grounds rarely proceed smoothly. In fact, where a court action has dragged on long enough so that more than a year has passed since the parties separated before the matter finally comes to court, some judges will refuse to hear any evidence of the wrongful behaviour and will grant the divorce instead on the basis of the parties' separation.

===Separation===

To obtain a divorce based on separation for a period of at least one year, you and your spouse must have lived separate and apart for that year. The period of living separate and apart can pass while living under the same roof, however the marital qualities of your relationship with your spouse must have ended.

The ''Divorce Act'' provides that a couple can attempt to reconcile and resume married life for up to 90 days during this one-year period. If the couple live together for a total period of more than 90 days with the intention of getting back together, the clock resets and a new one-year period will not start running until after the couple separates again.

===Adultery===

A spouse who is claiming that the other spouse is guilty of adultery must prove this claim in court. Before the court will pronounce the order for divorce, the court must also be satisfied that the party making the claim has not ''condoned'' the adultery or ''connived'' to effect the adultery. If the court is not satisfied, it will not grant the divorce.

Proof of adultery normally consists of an affidavit from either your spouse or the person with whom your spouse committed the adulterous act, admitting to the adultery. You cannot seek a divorce based on your own adulterous conduct.

Many people will have seen the movie "Intolerable Cruelty," which lays a great deal of emphasis on the punitive consequences of adultery, and suggests that spouses caught with their pants down are going to lose everything they have. That might be true in the US, but it certainly isn't true in Canada. In Canada, there are no consequences for marital offences of that nature: you won't lose your house, you won't lose the children, and you won't find yourself living in a cardboard box. Adultery, while relevant as a ground of divorce, plays no role in the court's determination of these other issues.

===Cruelty===

A spouse who claims that the other spouse is guilty of cruelty must prove his or her claim in court. Cruelty can consist of physical abuse or mental abuse, and may also give rise to a claim for an award of damages as a result of the cruelty. Before the court will pronounce the divorce order, it must be satisfied that the party making the claim has not ''condoned'' the cruelty.

Proof of cruelty normally consists of a medical, psychological or psychiatric report, or, in some circumstances, a simple letter from a treating professional describing the abuse.

===Conspiracy, connivance and condonation===

If a court finds that there has been conspiracy, connivance, or condonation in the application for the divorce order, the court will not grant the order. The point of this is to ensure that a couple are not attempting to escape the requirements of the ''Divorce Act'' and cheat the court to get a quick divorce.

If there has been ''condonation'', the marital offence used to found the divorce claim, adultery or cruelty, has been forgiven. If the act has been forgiven, the court cannot pronounce a divorce order since the marital relationship hasn't broken down.

''Conspiracy'' and ''connivance'' are both attempts to cheat the court. A relationship must have legitimately broken down before the court will officially dissolve it; anything else would be a fraud upon the court. ''Conspiracy'' means that the spouses have worked together to achieve the wrongful act providing the ground for divorce. This could mean, for example, an agreement between the spouses for one of them to have sex with someone else in order to claim adultery as a ground of divorce. ''Connivance'' means to arrange for the wrongful act to occur. For example, this could include one spouse arranging for the other to be seduced by someone else in order to claim adultery as a ground of divorce.

===Child support===

The court is required, under s. 11(1)(b) of the ''Divorce Act'', to satisfy itself that "reasonable arrangements" have been made for the support of the children before it can grant an order for divorce. As you might expect, a ''reasonable arrangement'' usually means that child support is being paid according to the [[Child Support Guidelines]]. If you have children, you will have to prove that the children are being provided for as the Guidelines require before you can get a divorce. Remember that under the Guidelines, the table amount of child support payable for incomes of less than $10,800 per year is zero.

The only possible exception to this rule would be if the parent to whom child support is payable cannot be found, and the child support payments therefore cannot be paid. In such circumstances the court may make a divorce order that doesn't refer to child support, or it may make an order that merely refers to the payor's obligation to pay child support without fixing an amount payable.

==The divorce order==

In order to get a divorce order, the court must be satisfied that:

*the marriage legally exists,
*at least one of the parties has been ordinarily resident in British Columbia for at least one year before the proceeding began,
*the ground on which marriage breakdown in claimed has been proven, and,
*if there are children, an adequate amount of child support is being paid.

It is possible to oppose an application for a divorce order. Practically speaking, however, by the time the application gets before a judge, the responding party has usually come to realize that a divorce is inevitable. If the court is satisfied that the applicant is entitled to his or her order because the grounds for the divorce have been proven, the divorce is usually granted despite any objections by the other spouse.

===Corollary relief===

An order for divorce can be made on its own or together with ''corollary relief''. Typical orders for corollary relief include orders about the care of children, child support, and spousal support.

Divorce orders are usually made after all of the corollary issues, if any, have been dealt with, either as a result of a trial or a settlement reached following negotiations. The court will be reluctant to make a divorce order until all of the legal issues have been addressed.

===The appeal period===

Orders for divorce usually contain a term that "this order shall not take effect until the 31st day after its pronouncement." This is to allow the appeal period to expire. Once those 31 days have passed, however, the parties are officially divorced and are free to remarry if they wish.

It is possible to abridge this appeal period, if the divorce must take effect sooner for some urgent reason such as remarriage. If this is the case, you should advise the court of the need for haste, and a waiver of appeal will have to be filed.

===Certificate of divorce===

Once the appeal period has expired, either party may apply to the court, for a small filing fee, for a Certificate of Divorce. This is, strictly speaking, unnecessary, as the order is itself sufficient proof of divorce. Nevertheless, people often want this certificate to obtain a sense of closure, or because they expect to marry within the next couple of years, or because they may wish to prove they are divorced without having to disclose the other terms of their divorce order. Most family law lawyers take care to prepare Certificates of Divorce nicely in a format suitable for framing.

==Foreign divorce orders==

Section 22(1) of the ''Divorce Act'' deals with the effect in Canada of divorces obtained outside Canada. In a nutshell, if a divorce was properly granted by the foreign country the parties will also be considered to be divorced here, without the need to obtain a Canadian divorce order.

Of course, there is a small catch. Either spouse must have been "ordinarily resident" in the country in which the divorce was obtained for at least one year before the divorce proceedings started. In other words, if you've lived in Sri Lanka for less than a year before you started your application for divorce, your divorce may not be recognized in Canada even though it's perfectly good in Sri Lanka. As long as you had lived in Sri Lanka for more than one year before you started your application, your divorce there will be valid in Canada.

Even if a foreign divorce isn't good under Canadian law, everyone will usually accept the fact that the spouse is divorced. Whether the divorce meets Canadian requirements will only ever become an issue if one of the spouses later claims that the divorce is not valid. This can have some fairly serious consequences, mostly involving the division of property and pensions. You can find more information about the property entitlements of married spouses in the chapter [[Property & Debt in Family Law Matters]] within the section [[Dividing Property & Debt in Family Law Matters]].

==The do-it-yourself divorce==

The only way to obtain an order for divorce is by starting a court proceeding; you must sue your spouse if you want to get divorced. The do-it-yourself process, called the ''desk order divorce process'', allows you to obtain a final order for divorce without ever having to appear in court, and the order can deal with all of the issues between you and your spouse, from divorce to the division of property to child support.

You can get your divorce yourself using the desk order divorce process, without having to retain a lawyer. While some of the court forms can be a bit daunting, there are plenty of resources, such as this website, that can help you unravel the mysteries and complete the process on your own.

Generally speaking, a desk order divorce is appropriate in two situations:

#when the only issue between you and your spouse is getting a divorce; or,
#when you have other issues, but those have been settled, either through a separation agreement or an agreement about the terms of a consent order.

In the first case, a desk order application will be for a divorce alone. In the second case, a desk order application will be an application for a divorce plus ''corollary relief'', that is, orders apart from the divorce order itself, such as orders dealing with care of children, support, or the division of assets.

Most court proceedings go like this: the claimant files a Notice of Family Claim and serves it on the respondent; the respondent then files a Response to Family Claim and sometimes a Counterclaim. If the respondent fails to file a Response to Family Claim, the claimant's court proceeding is said to be ''uncontested''. This means that the respondent is assumed to either agree with the relief sought by the claimant or to have chosen not to defend the claim. In such circumstances, the claimant is free to seek a ''default judgment'' against the respondent.

A desk order divorce application is essentially an application for a default judgment, whether the claimant's court proceeding is for a divorce order alone or for a divorce order with corollary relief, and is governed by Rule 10-10 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules].

For a brief summary of this process, go to the ''How Do I?'' section of this resource and read [[How Do I Get Divorced?]] It's located under ''Marriage, Separation & Divorce''.

There are two types of desk order divorce actions:

#the sole application process, in which only one spouse is responsible for ushering the process through; and,
#the joint application process, in which the spouses work together to get the job done.

There are a few important differences between sole applications and joint applications.

*Joint applications are quicker and cheaper, but the spouses will have to cooperate with each other. In a sole application, no cooperation is required.
*A sole application takes a little longer since the person bringing the action has to serve the other spouse with the Notice of Family Claim and wait 40 days before proceeding. In a joint application, service is not necessary and you can apply for the divorce order right away.
*In a sole application, the spouses are called the claimant and respondent. In a joint application, the spouses are called claimant 1 and claimant 2.
*In a joint application, both spouses must sign the Notice of Family Claim, and both must execute an affidavit for the application for the divorce order.

===The sole divorce application===

These instructions are for the sole divorce application process:

'''Step One'''

<blockquote>Prepare your Notice of Family Claim. Make three copies of the original.</blockquote>

'''Step Two'''

<blockquote>Go to your local registry of the British Columbia Supreme Court. Bring the original Notice of Family Claim and the three copies you have made of it. Also bring the original of your government-issued Marriage Certificate. Fill out the Registration of Divorce Proceeding form, which will be available at the courthouse. File all of these materials and pay the $210 court fee. The court will stamp the action number and the court seal on all copies of your Notice of Family Claim, keep the original, and give you back the three duplicates. Your Marriage Certificate will go into the court file.</blockquote>

'''Step Three'''

<blockquote>Serve your ex with your Notice of Family Claim. You cannot serve your ex yourself; you must arrange for someone else to do it. Give the person who will be your process server two copies of your Notice of Family Claim, along with a photograph of your ex. The process server will serve one copy of the materials on your ex, and will use the photograph and the remaining copy in his or her Affidavit of Personal Service to prove that your ex was served.</blockquote>

'''Step Four'''

<blockquote>Once your ex is served, wait 40 days. Technically, you only need to wait 31 days from the date of service, but it doesn't hurt to add a few days just to be sure. If your ex files a Response to Family Claim or Counterclaim in this period, there's a problem. Read the discussion in "What happens if a response or counterclaim are filed?" at the end of this section.</blockquote>

'''Step Five'''

<blockquote>Prepare your Requisition asking the court for the divorce order, your Divorce Affidavit in support of the application, a draft of the order you want the court to make, and the Registrar's Certificate. If you have children, you will also have to prepare a Child Support Affidavit, which sets out the details of your income and your spouse's income and the terms on which child support will (or won't) be paid.</blockquote>

'''Step Six'''

<blockquote>Go to the court registry you filed your materials at, and file your Requisition, your Affidavit, your Child Support Affidavit if required, your Registrar's Certificate, your draft order, and your process server's Affidavit of Personal Service. Pay the $80 court fee.</blockquote>

'''Step Seven'''

<blockquote>Once you've filed your application, wait four weeks.</blockquote>

'''Step Eight'''

<blockquote>Start calling the court registry to see whether your order is ready for you to pick-up. This should take four to eight weeks, depending on how busy the court is. When your order is ready, go to the courthouse to get the entered order, and then mail a copy to your ex.</blockquote>

Once you've got your entered divorce order and 31 days have passed, you are officially divorced, and you have a court order bearing the seal of the court to prove it. Some people may find that a Certificate of Divorce is necessary in order to remarry. If you wish to get this Certificate, this is what you must do:

'''Step Nine'''

<blockquote>Wait 32 days from the date the divorce order was made. The date will be shown on the first page of the order.</blockquote>

'''Step Ten'''

<blockquote>Prepare your draft Certificate of Divorce and file it in the court registry, together with a Requisition asking the registry to complete the Certificate. Pay the $40 court fee, and grab a chair. The registry will normally complete your Certificate of Divorce while you wait.</blockquote>

===The joint divorce application===

The joint divorce application process is almost exactly the same as the sole divorce application process, except that some of the forms are different, service is not required, and the length of time it takes to get a divorce is about four to eight weeks in total.

These are the main differences between the joint application process and the sole application process:

*The parties are known as claimant 1 and claimant 2.
*A special form, Notice of Family Claim is required.
*Both parties sign the Notice of Family Claim.
*The Notice of Family Claim does not need to be served on anyone, and there is no waiting period that must pass before the application for the divorce order can be made.
*Both parties must swear an affidavit in support of the application for the divorce order.
*All of the documents can be filed at once, although at least one of the affidavits in support of the application must be sworn after everything else is filed, even if only by a few minutes.

If either party withdraws from the joint application process before the divorce order is made, there's a problem. Read the discussion in "What happens if a response or counterclaim are filed?" at the end of this section.

These instructions are for the joint divorce application process.

'''Step One'''

<blockquote>Prepare a joint Notice of Family Claim. Prepare and execute one Divorce Affidavit in support of the application; prepare your blank Registrar's Certificate; prepare and complete your Requisition to apply for the divorce order; and, prepare your draft order. Make two copies of everything. Prepare but do not execute the other Divorce Affidavit.</blockquote>

'''Step Two'''

<blockquote>Go to your local registry of the British Columbia Supreme Court. Bring all the documents listed in Step One and the original of your government-issued Marriage Certificate. Fill out the Registration of Divorce Proceeding form, which will be available at the family and divorce counter. File all of these materials (except the unexecuted affidavit) and pay the $290 court fee. The court will stamp the action number and the court seal on all copies of your Joint Notice of Family Claim, keep the original, and give you back the two duplicates. Your Marriage Certificate will go into the court file.</blockquote>

'''Step Three'''

<blockquote>While you're at the registry counter, execute the remaining affidavit in support of the application for divorce, and pay the $40 court fee.</blockquote>

'''Step Four'''

<blockquote>Once you've filed your application, wait four weeks.</blockquote>

'''Step Five'''

<blockquote>Once four weeks have passed, start calling the court registry to see whether your order is ready for you to pick-up. This should take four to eight weeks, depending on how busy the court is. When your order is ready, go to the courthouse to pick the entered order up, and then mail a copy to your ex.</blockquote>

Once you've got your entered divorce order and 31 days have passed, you are officially divorced, and you have a court order bearing the seal of the court to prove it. Some people may find that a Certificate of Divorce is necessary in order to remarry. If you wish to get this Certificate, this is what you must do:

'''Step Six'''

<blockquote>Wait 32 days from the date the order was made. The date will be shown on the first page of the order.</blockquote>

'''Step Seven'''

<blockquote>Prepare your Certificate of Divorce and file it in the court registry, together with a Requisition asking the registry to complete the Certificate. Pay the $40 court fee, and grab a chair. The registry will normally complete your Certificate of Divorce while you wait.</blockquote>

With the exception of the special form, Notice of Family Claim, all of the forms used in the joint process are the same as the sole process, except that the parties aren't called claimant and respondent, they're called claimant 1 and claimant 2.

===Free services===

The Salvation Army's pro bono program and Access Pro Bono offer free meetings with lawyers who can review your forms with you before you file them in court. In some cases, the Salvation Army may also be able to prepare your documents for you. Although the lawyers available through these programs are not likely to prepare your documents, they will give them a check to make sure that the registry will accept them.

The British Columbia Continuing Legal Education Society has published an excellent guide to the desk order divorce process called the Desk Order Divorce Manual, which has samples of the different clauses you may need to complete your court forms. This book is available at your local courthouse library.

===Services that are not free===

====Lawyers====

You're usually best off if you hire a lawyer to handle your divorce for you, as your lawyer will be familiar with the nuances and complications of the desk order divorce process and can give you expert advice about the short- and long-term advantages and disadvantages of the arrangement you've worked out with your spouse. This can be critical where the terms or circumstances of your divorce are unusual or complicated.

Lawyers, however, come at a cost. You should expect that you will be charged fees of anywhere between $500 and $2,000 for your divorce, plus the lawyer's out-of-pocket expenses for things like court fees and photocopying.

====Commercial services====

A local company called Self-Counsel Press publishes a kit for the desk order divorce process. The kit, which costs something like $25 to $35, contains all the forms necessary to apply for a desk order divorce, plus instructions on how to make the application. Make sure that the kit you buy has forms that are current to the changes made on 18 March 2013.

There are a number of commercial services available online that will prepare all of the necessary documents for you, including:

*http://www.divorceoptions.ca
*http://www.untietheknot.ca
*http://www.britishcolumbiadivorce.ca

If I understand things correctly, untietheknot.ca will also file your documents in court for you. A Google search for the phrase "desk order divorce BC" should provide you with a few other options, but whatever you do, make sure you're using a service that offers the forms required for a divorce in British Columbia!

===What happens if a response or counterclaim are filed?===

The do-it-yourself divorce process is based on the idea that either everyone agrees to get divorced or no one is going to object to the divorce. The process will go off the rails if:

*'''Sole Application:''' the respondent files a Response to Family Claim or a Counterclaim; or,
*'''Joint Application:''' a claimant withdraws from the process and files a Response to Family Claim or a Counterclaim.

In either situation, the divorce action will cease to qualify as an ''undefended family law case'' within the meaning of Rule 1-1(1) and cannot proceed as a desk order. The divorce action will continue like any other contested family law case and proceed to trial if a settlement cannot be reached.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/80mh Federal Child Support Guidelines]''

===Links===

* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/divorce.php Legal Services Society’s Family Law Website: Divorce]
* Online Divorce Services:
**[http://www.divorceoptions.ca DivorceOptions.ca]
**[http://www.untietheknot.ca Untie The Knot Divorce Service]
**[http://www.britishcolumbiadivorce.ca Canadian Divorce Online]

{{REVIEWED | reviewer = [[JP Boyd]], March 24, 2013}}

{{JP Boyd on Family Law Navbox|type=chapters}}

[[Category:Marriage, Separation & Divorce]]

{{Creative Commons for JP Boyd}}

Divorce and the Law on Getting Divorced

2013-05-05T21:57:07Z

Gayla Reid: /* Foreign divorce orders */

{{JP Boyd on Family Law TOC|expanded = separation}}
{{LSSbadge
| resourcetype = more information on
| link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/divorce.php Divorce]
}}Divorce is the legal termination of a marriage by an order of the court. Without this order, a couple will remain married to each other no matter how long they've been separated. Although a divorce order represents the formal conclusion of a marriage, where children are involved or one spouse is financially dependent on the other, issues about the payment of support and the care of the children will continue.

This section provides an overview of the grounds for divorce, and discusses the nature of a divorce order and the effect of foreign divorce orders in Canada. It also reviews the do-it-yourself divorce process, and the court forms used in that process, in enough detail that you can get your own divorce without having to hire a lawyer.

The criteria that must be met to obtain an annulment ― which is different than a divorce order and isn't nearly as simple and straightforward as most people think ― are discussed in the chapter [[Family Relationships]] within the section [[Married Spouses]].

==The grounds for divorce==

Under the federal ''[[Divorce Act]]'' there is really only one reason why you can apply for a divorce order, ''marriage breakdown''. Under s. 8 of the act, there are three reasons why marriage breakdown may have occurred:

#the intentional separation of the spouses for at least one year;
#the adultery of a spouse; and,
#one spouse's treatment of the other with such mental or physical cruelty that it is impossible to continue the marriage.

In Canada, all divorces proceed on a no-fault basis, regardless of the ground of divorce relied upon. ''No-fault'', in this context, means that the reasons for marriage breakdown have nothing at all to do with the court's consideration of issues like custody and support. No matter how upset someone is by a spouse's misbehaviour, it will have no impact on how the legal issues are addressed.

Most divorces are based on separation. The only advantage of seeking a divorce based on cruelty or adultery is that the divorce is available relatively quickly; you needn't wait for a year's worth of separation to pass before you are eligible for the order. However, while you are eligible to begin divorce proceedings as soon as you learn of the adultery or experience the cruelty, you must be able to prove that the other spouse committed the wrongful behaviour you allege.

As you can imagine, few people are prepared to admit that they committed adultery or battered their spouse, and as a result divorces based on these grounds rarely proceed smoothly. In fact, where a court action has dragged on long enough so that more than a year has passed since the parties separated before the matter finally comes to court, some judges will refuse to hear any evidence of the wrongful behaviour and will grant the divorce instead on the basis of the parties' separation.

===Separation===

To obtain a divorce based on separation for a period of at least one year, you and your spouse must have lived separate and apart for that year. The period of living separate and apart can pass while living under the same roof, however the marital qualities of your relationship with your spouse must have ended.

The ''Divorce Act'' provides that a couple can attempt to reconcile and resume married life for up to 90 days during this one-year period. If the couple live together for a total period of more than 90 days with the intention of getting back together, the clock resets and a new one-year period will not start running until after the couple separates again.

===Adultery===

A spouse who is claiming that the other spouse is guilty of adultery must prove this claim in court. Before the court will pronounce the order for divorce, the court must also be satisfied that the party making the claim has not ''condoned'' the adultery or ''connived'' to effect the adultery. If the court is not satisfied, it will not grant the divorce.

Proof of adultery normally consists of an affidavit from either your spouse or the person with whom your spouse committed the adulterous act, admitting to the adultery. You cannot seek a divorce based on your own adulterous conduct.

Many people will have seen the movie "Intolerable Cruelty," which lays a great deal of emphasis on the punitive consequences of adultery, and suggests that spouses caught with their pants down are going to lose everything they have. That might be true in the US, but it certainly isn't true in Canada. In Canada, there are no consequences for marital offences of that nature: you won't lose your house, you won't lose the children, and you won't find yourself living in a cardboard box. Adultery, while relevant as a ground of divorce, plays no role in the court's determination of these other issues.

===Cruelty===

A spouse who claims that the other spouse is guilty of cruelty must prove his or her claim in court. Cruelty can consist of physical abuse or mental abuse, and may also give rise to a claim for an award of damages as a result of the cruelty. Before the court will pronounce the divorce order, it must be satisfied that the party making the claim has not ''condoned'' the cruelty.

Proof of cruelty normally consists of a medical, psychological or psychiatric report, or, in some circumstances, a simple letter from a treating professional describing the abuse.

===Conspiracy, connivance and condonation===

If a court finds that there has been conspiracy, connivance, or condonation in the application for the divorce order, the court will not grant the order. The point of this is to ensure that a couple are not attempting to escape the requirements of the ''Divorce Act'' and cheat the court to get a quick divorce.

If there has been ''condonation'', the marital offence used to found the divorce claim, adultery or cruelty, has been forgiven. If the act has been forgiven, the court cannot pronounce a divorce order since the marital relationship hasn't broken down.

''Conspiracy'' and ''connivance'' are both attempts to cheat the court. A relationship must have legitimately broken down before the court will officially dissolve it; anything else would be a fraud upon the court. ''Conspiracy'' means that the spouses have worked together to achieve the wrongful act providing the ground for divorce. This could mean, for example, an agreement between the spouses for one of them to have sex with someone else in order to claim adultery as a ground of divorce. ''Connivance'' means to arrange for the wrongful act to occur. For example, this could include one spouse arranging for the other to be seduced by someone else in order to claim adultery as a ground of divorce.

===Child support===

The court is required, under s. 11(1)(b) of the ''Divorce Act'', to satisfy itself that "reasonable arrangements" have been made for the support of the children before it can grant an order for divorce. As you might expect, a ''reasonable arrangement'' usually means that child support is being paid according to the [[Child Support Guidelines]]. If you have children, you will have to prove that the children are being provided for as the Guidelines require before you can get a divorce. Remember that under the Guidelines, the table amount of child support payable for incomes of less than $10,800 per year is zero.

The only possible exception to this rule would be if the parent to whom child support is payable cannot be found, and the child support payments therefore cannot be paid. In such circumstances the court may make a divorce order that doesn't refer to child support, or it may make an order that merely refers to the payor's obligation to pay child support without fixing an amount payable.

==The divorce order==

In order to get a divorce order, the court must be satisfied that:

*the marriage legally exists,
*at least one of the parties has been ordinarily resident in British Columbia for at least one year before the proceeding began,
*the ground on which marriage breakdown in claimed has been proven, and,
*if there are children, an adequate amount of child support is being paid.

It is possible to oppose an application for a divorce order. Practically speaking, however, by the time the application gets before a judge, the responding party has usually come to realize that a divorce is inevitable. If the court is satisfied that the applicant is entitled to his or her order because the grounds for the divorce have been proven, the divorce is usually granted despite any objections by the other spouse.

===Corollary relief===

An order for divorce can be made on its own or together with ''corollary relief''. Typical orders for corollary relief include orders about the care of children, child support, and spousal support.

Divorce orders are usually made after all of the corollary issues, if any, have been dealt with, either as a result of a trial or a settlement reached following negotiations. The court will be reluctant to make a divorce order until all of the legal issues have been addressed.

===The appeal period===

Orders for divorce usually contain a term that "this order shall not take effect until the 31st day after its pronouncement." This is to allow the appeal period to expire. Once those 31 days have passed, however, the parties are officially divorced and are free to remarry if they wish.

It is possible to abridge this appeal period, if the divorce must take effect sooner for some urgent reason such as remarriage. If this is the case, you should advise the court of the need for haste, and a waiver of appeal will have to be filed.

===Certificate of divorce===

Once the appeal period has expired, either party may apply to the court, for a small filing fee, for a Certificate of Divorce. This is, strictly speaking, unnecessary, as the order is itself sufficient proof of divorce. Nevertheless, people often want this certificate to obtain a sense of closure, or because they expect to marry within the next couple of years, or because they may wish to prove they are divorced without having to disclose the other terms of their divorce order. Most family law lawyers take care to prepare Certificates of Divorce nicely in a format suitable for framing.

==Foreign divorce orders==

Section 22(1) of the ''Divorce Act'' deals with the effect in Canada of divorces obtained outside Canada. In a nutshell, if a divorce was properly granted by the foreign country the parties will also be considered to be divorced here, without the need to obtain a Canadian divorce order.

Of course, there is a small catch. Either spouse must have been "ordinarily resident" in the country in which the divorce was obtained for at least one year before the divorce proceedings started. In other words, if you've lived in Sri Lanka for less than a year before you started your application for divorce, your divorce may not be recognized in Canada even though it's perfectly good in Sri Lanka. As long as you had lived in Sri Lanka for more than one year before you started your application, your divorce there will be valid in Canada.

Even if a foreign divorce isn't good under Canadian law, everyone will usually accept the fact that the spouse is divorced. Whether the divorce meets Canadian requirements will only ever become an issue if one of the spouses later claims that the divorce is not valid. This can have some fairly serious consequences, mostly involving the division of property and pensions. You can find more information about the property entitlements of married spouses in the chapter [[Property & Debt in Family Law Matters]] within the section [[Dividing Property & Debt in Family Law Matters]].

==The do-it-yourself divorce==

The only way to obtain an order for divorce is by starting a court proceeding; you must sue your spouse if you want to get divorced. The do-it-yourself process, called the ''desk order divorce process'', allows you to obtain a final order for divorce without ever having to appear in court, and the order can deal with all of the issues between you and your spouse, from divorce to the division of property to child support.

You can get your divorce yourself using the desk order divorce process, without having to retain a lawyer. While some of the court forms can be a bit daunting, there are plenty of resources, such as this website, that can help you unravel the mysteries and complete the process on your own.

Generally speaking, a desk order divorce is appropriate in two situations:

#when the only issue between you and your spouse is getting a divorce; or,
#when you have other issues, but those have been settled, either through a separation agreement or an agreement about the terms of a consent order.

In the first case, a desk order application will be for a divorce alone. In the second case, a desk order application will be an application for a divorce plus ''corollary relief'', that is, orders apart from the divorce order itself, such as orders dealing with care of children, support, or the division of assets.

Most court proceedings go like this: the claimant files a Notice of Family Claim and serves it on the respondent; the respondent then files a Response to Family Claim and sometimes a Counterclaim. If the respondent fails to file a Response to Family Claim, the claimant's court proceeding is said to be ''uncontested''. This means that the respondent is assumed to either agree with the relief sought by the claimant or to have chosen not to defend the claim. In such circumstances, the claimant is free to seek a ''default judgment'' against the respondent.

A desk order divorce application is essentially an application for a default judgment, whether the claimant's court proceeding is for a divorce order alone or for a divorce order with corollary relief, and is governed by Rule 10-10 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules].

For a brief summary of this process, go to the ''How Do I?'' section of this resource and read [[How Do I Get Divorced?]] It's located under ''Marriage, Separation & Divorce''.

There are two types of desk order divorce actions:

#the sole application process, in which only one spouse is responsible for ushering the process through; and,
#the joint application process, in which the spouses work together to get the job done.

There are a few important differences between sole applications and joint applications.

*Joint applications are quicker and cheaper, but the spouses will have to cooperate with each other. In a sole application, no cooperation is required.
*A sole application takes a little longer since the person bringing the action has to serve the other spouse with the Notice of Family Claim and wait 40 days before proceeding. In a joint application, service is not necessary and you can apply for the divorce order right away.
*In a sole application, the spouses are called the claimant and respondent. In a joint application, the spouses are called claimant 1 and claimant 2.
*In a joint application, both spouses must sign the Notice of Family Claim, and both must execute an affidavit for the application for the divorce order.

===The sole divorce application===

These instructions are for the sole divorce application process.

'''Step One'''

<blockquote>Prepare your Notice of Family Claim. Make three copies of the original.</blockquote>

'''Step Two'''

<blockquote>Go to your local registry of the British Columbia Supreme Court. Bring the original Notice of Family Claim and the three copies you have made of it. Also bring the original of your government-issued Marriage Certificate. Fill out the Registration of Divorce Proceeding form, which will be available at the courthouse. File all of these materials and pay the $210 court fee. The court will stamp the action number and the court seal on all copies of your Notice of Family Claim, keep the original, and give you back the three duplicates. Your Marriage Certificate will go into the court file.</blockquote>

'''Step Three'''

<blockquote>Serve your ex with your Notice of Family Claim. You cannot serve your ex yourself; you must arrange for someone else to do it. Give the person who will be your process server two copies of your Notice of Family Claim, along with a photograph of your ex. The process server will serve one copy of the materials on your ex, and will use the photograph and the remaining copy in his or her Affidavit of Personal Service to prove that your ex was served.</blockquote>

'''Step Four'''

<blockquote>Once your ex is served, wait 40 days. Technically, you only need to wait 31 days from the date of service, but it doesn't hurt to add a few days just to be sure. If your ex files a Response to Family Claim or Counterclaim in this period, there's a problem. Read the discussion in "What happens if a response or counterclaim are filed?" at the end of this section.</blockquote>

'''Step Five'''

<blockquote>Prepare your Requisition asking the court for the divorce order, your Divorce Affidavit in support of the application, a draft of the order you want the court to make, and the Registrar's Certificate. If you have children, you will also have to prepare a Child Support Affidavit, which sets out the details of your income and your spouse's income and the terms on which child support will (or won't) be paid.</blockquote>

'''Step Six'''

<blockquote>Go to the court registry you filed your materials at, and file your Requisition, your Affidavit, your Child Support Affidavit if required, your Registrar's Certificate, your draft order, and your process server's Affidavit of Personal Service. Pay the $80 court fee.</blockquote>

'''Step Seven'''

<blockquote>Once you've filed your application, wait four weeks.</blockquote>

'''Step Eight'''

<blockquote>Start calling the court registry to see whether your order is ready for you to pick-up. This should take four to eight weeks, depending on how busy the court is. When your order is ready, go to the courthouse to get the entered order, and then mail a copy to your ex.</blockquote>

Once you've got your entered divorce order and 31 days have passed, you are officially divorced, and you have a court order bearing the seal of the court to prove it. Some people may find that a Certificate of Divorce is necessary in order to remarry. If you wish to get this Certificate, this is what you must do:

'''Step Nine'''

<blockquote>Wait 32 days from the date the divorce order was made. The date will be shown on the first page of the order.</blockquote>

'''Step Ten'''

<blockquote>Prepare your draft Certificate of Divorce and file it in the court registry, together with a Requisition asking the registry to complete the Certificate. Pay the $40 court fee, and grab a chair. The registry will normally complete your Certificate of Divorce while you wait.</blockquote>

===The joint divorce application===

The joint divorce application process is almost exactly the same as the sole divorce application process, except that some of the forms are different, service is not required, and the length of time it takes to get a divorce is about four to eight weeks in total.

These are the main differences between the joint application process and the sole application process:

*The parties are known as claimant 1 and claimant 2.
*A special form, Notice of Family Claim is required.
*Both parties sign the Notice of Family Claim.
*The Notice of Family Claim does not need to be served on anyone, and there is no waiting period that must pass before the application for the divorce order can be made.
*Both parties must swear an affidavit in support of the application for the divorce order.
*All of the documents can be filed at once, although at least one of the affidavits in support of the application must be sworn after everything else is filed, even if only by a few minutes.

If either party withdraws from the joint application process before the divorce order is made, there's a problem. Read the discussion in "What happens if a response or counterclaim are filed?" at the end of this section.

These instructions are for the joint divorce application process.

'''Step One'''

<blockquote>Prepare a joint Notice of Family Claim. Prepare and execute one Divorce Affidavit in support of the application; prepare your blank Registrar's Certificate; prepare and complete your Requisition to apply for the divorce order; and, prepare your draft order. Make two copies of everything. Prepare but do not execute the other Divorce Affidavit.</blockquote>

'''Step Two'''

<blockquote>Go to your local registry of the British Columbia Supreme Court. Bring all the documents listed in Step One and the original of your government-issued Marriage Certificate. Fill out the Registration of Divorce Proceeding form, which will be available at the family and divorce counter. File all of these materials (except the unexecuted affidavit) and pay the $290 court fee. The court will stamp the action number and the court seal on all copies of your Joint Notice of Family Claim, keep the original, and give you back the two duplicates. Your Marriage Certificate will go into the court file.</blockquote>

'''Step Three'''

<blockquote>While you're at the registry counter, execute the remaining affidavit in support of the application for divorce, and pay the $40 court fee.</blockquote>

'''Step Four'''

<blockquote>Once you've filed your application, wait four weeks.</blockquote>

'''Step Five'''

<blockquote>Once four weeks have passed, start calling the court registry to see whether your order is ready for you to pick-up. This should take four to eight weeks, depending on how busy the court is. When your order is ready, go to the courthouse to pick the entered order up, and then mail a copy to your ex.</blockquote>

Once you've got your entered divorce order and 31 days have passed, you are officially divorced, and you have a court order bearing the seal of the court to prove it. Some people may find that a Certificate of Divorce is necessary in order to remarry. If you wish to get this Certificate, this is what you must do:

'''Step Six'''

<blockquote>Wait 32 days from the date the order was made. The date will be shown on the first page of the order.</blockquote>

'''Step Seven'''

<blockquote>Prepare your Certificate of Divorce and file it in the court registry, together with a Requisition asking the registry to complete the Certificate. Pay the $40 court fee, and grab a chair. The registry will normally complete your Certificate of Divorce while you wait.</blockquote>

With the exception of the special form, Notice of Family Claim, all of the forms used in the joint process are the same as the sole process, except that the parties aren't called claimant and respondent, they're called claimant 1 and claimant 2.

===Free services===

The Salvation Army's pro bono program and Access Pro Bono offer free meetings with lawyers who can review your forms with you before you file them in court. In some cases, the Salvation Army may also be able to prepare your documents for you. Although the lawyers available through these programs are not likely to prepare your documents, they will give them a check to make sure that the registry will accept them.

The British Columbia Continuing Legal Education Society has published an excellent guide to the desk order divorce process called the Desk Order Divorce Manual, which has samples of the different clauses you may need to complete your court forms. This book is available at your local courthouse library.

===Services that are not free===

====Lawyers====

You're usually best off if you hire a lawyer to handle your divorce for you, as your lawyer will be familiar with the nuances and complications of the desk order divorce process and can give you expert advice about the short- and long-term advantages and disadvantages of the arrangement you've worked out with your spouse. This can be critical where the terms or circumstances of your divorce are unusual or complicated.

Lawyers, however, come at a cost. You should expect that you will be charged fees of anywhere between $500 and $2,000 for your divorce, plus the lawyer's out-of-pocket expenses for things like court fees and photocopying.

====Commercial services====

A local company called Self-Counsel Press publishes a kit for the desk order divorce process. The kit, which costs something like $25 to $35, contains all the forms necessary to apply for a desk order divorce, plus instructions on how to make the application. Make sure that the kit you buy has forms that are current to the changes made on 18 March 2013.

There are a number of commercial services available online that will prepare all of the necessary documents for you, including:

*http://www.divorceoptions.ca
*http://www.untietheknot.ca
*http://www.britishcolumbiadivorce.ca

If I understand things correctly, untietheknot.ca will also file your documents in court for you. A Google search for the phrase "desk order divorce BC" should provide you with a few other options, but whatever you do, make sure you're using a service that offers the forms required for a divorce in British Columbia!

===What happens if a response or counterclaim are filed?===

The do-it-yourself divorce process is based on the idea that either everyone agrees to get divorced or no one is going to object to the divorce. The process will go off the rails if:

*'''Sole Application:''' the respondent files a Response to Family Claim or a Counterclaim; or,
*'''Joint Application:''' a claimant withdraws from the process and files a Response to Family Claim or a Counterclaim.

In either situation, the divorce action will cease to qualify as an ''undefended family law case'' within the meaning of Rule 1-1(1) and cannot proceed as a desk order. The divorce action will continue like any other contested family law case and proceed to trial if a settlement cannot be reached.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/80mh Federal Child Support Guidelines]''

===Links===

* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/divorce.php Legal Services Society’s Family Law Website: Divorce]
* Online Divorce Services:
**[http://www.divorceoptions.ca DivorceOptions.ca]
**[http://www.untietheknot.ca Untie The Knot Divorce Service]
**[http://www.britishcolumbiadivorce.ca Canadian Divorce Online]

{{REVIEWED | reviewer = [[JP Boyd]], March 24, 2013}}

{{JP Boyd on Family Law Navbox|type=chapters}}

[[Category:Marriage, Separation & Divorce]]

{{Creative Commons for JP Boyd}}

Divorce and the Law on Getting Divorced

2013-05-05T21:56:43Z

Gayla Reid: /* Foreign divorce orders */

{{JP Boyd on Family Law TOC|expanded = separation}}
{{LSSbadge
| resourcetype = more information on
| link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/divorce.php Divorce]
}}Divorce is the legal termination of a marriage by an order of the court. Without this order, a couple will remain married to each other no matter how long they've been separated. Although a divorce order represents the formal conclusion of a marriage, where children are involved or one spouse is financially dependent on the other, issues about the payment of support and the care of the children will continue.

This section provides an overview of the grounds for divorce, and discusses the nature of a divorce order and the effect of foreign divorce orders in Canada. It also reviews the do-it-yourself divorce process, and the court forms used in that process, in enough detail that you can get your own divorce without having to hire a lawyer.

The criteria that must be met to obtain an annulment ― which is different than a divorce order and isn't nearly as simple and straightforward as most people think ― are discussed in the chapter [[Family Relationships]] within the section [[Married Spouses]].

==The grounds for divorce==

Under the federal ''[[Divorce Act]]'' there is really only one reason why you can apply for a divorce order, ''marriage breakdown''. Under s. 8 of the act, there are three reasons why marriage breakdown may have occurred:

#the intentional separation of the spouses for at least one year;
#the adultery of a spouse; and,
#one spouse's treatment of the other with such mental or physical cruelty that it is impossible to continue the marriage.

In Canada, all divorces proceed on a no-fault basis, regardless of the ground of divorce relied upon. ''No-fault'', in this context, means that the reasons for marriage breakdown have nothing at all to do with the court's consideration of issues like custody and support. No matter how upset someone is by a spouse's misbehaviour, it will have no impact on how the legal issues are addressed.

Most divorces are based on separation. The only advantage of seeking a divorce based on cruelty or adultery is that the divorce is available relatively quickly; you needn't wait for a year's worth of separation to pass before you are eligible for the order. However, while you are eligible to begin divorce proceedings as soon as you learn of the adultery or experience the cruelty, you must be able to prove that the other spouse committed the wrongful behaviour you allege.

As you can imagine, few people are prepared to admit that they committed adultery or battered their spouse, and as a result divorces based on these grounds rarely proceed smoothly. In fact, where a court action has dragged on long enough so that more than a year has passed since the parties separated before the matter finally comes to court, some judges will refuse to hear any evidence of the wrongful behaviour and will grant the divorce instead on the basis of the parties' separation.

===Separation===

To obtain a divorce based on separation for a period of at least one year, you and your spouse must have lived separate and apart for that year. The period of living separate and apart can pass while living under the same roof, however the marital qualities of your relationship with your spouse must have ended.

The ''Divorce Act'' provides that a couple can attempt to reconcile and resume married life for up to 90 days during this one-year period. If the couple live together for a total period of more than 90 days with the intention of getting back together, the clock resets and a new one-year period will not start running until after the couple separates again.

===Adultery===

A spouse who is claiming that the other spouse is guilty of adultery must prove this claim in court. Before the court will pronounce the order for divorce, the court must also be satisfied that the party making the claim has not ''condoned'' the adultery or ''connived'' to effect the adultery. If the court is not satisfied, it will not grant the divorce.

Proof of adultery normally consists of an affidavit from either your spouse or the person with whom your spouse committed the adulterous act, admitting to the adultery. You cannot seek a divorce based on your own adulterous conduct.

Many people will have seen the movie "Intolerable Cruelty," which lays a great deal of emphasis on the punitive consequences of adultery, and suggests that spouses caught with their pants down are going to lose everything they have. That might be true in the US, but it certainly isn't true in Canada. In Canada, there are no consequences for marital offences of that nature: you won't lose your house, you won't lose the children, and you won't find yourself living in a cardboard box. Adultery, while relevant as a ground of divorce, plays no role in the court's determination of these other issues.

===Cruelty===

A spouse who claims that the other spouse is guilty of cruelty must prove his or her claim in court. Cruelty can consist of physical abuse or mental abuse, and may also give rise to a claim for an award of damages as a result of the cruelty. Before the court will pronounce the divorce order, it must be satisfied that the party making the claim has not ''condoned'' the cruelty.

Proof of cruelty normally consists of a medical, psychological or psychiatric report, or, in some circumstances, a simple letter from a treating professional describing the abuse.

===Conspiracy, connivance and condonation===

If a court finds that there has been conspiracy, connivance, or condonation in the application for the divorce order, the court will not grant the order. The point of this is to ensure that a couple are not attempting to escape the requirements of the ''Divorce Act'' and cheat the court to get a quick divorce.

If there has been ''condonation'', the marital offence used to found the divorce claim, adultery or cruelty, has been forgiven. If the act has been forgiven, the court cannot pronounce a divorce order since the marital relationship hasn't broken down.

''Conspiracy'' and ''connivance'' are both attempts to cheat the court. A relationship must have legitimately broken down before the court will officially dissolve it; anything else would be a fraud upon the court. ''Conspiracy'' means that the spouses have worked together to achieve the wrongful act providing the ground for divorce. This could mean, for example, an agreement between the spouses for one of them to have sex with someone else in order to claim adultery as a ground of divorce. ''Connivance'' means to arrange for the wrongful act to occur. For example, this could include one spouse arranging for the other to be seduced by someone else in order to claim adultery as a ground of divorce.

===Child support===

The court is required, under s. 11(1)(b) of the ''Divorce Act'', to satisfy itself that "reasonable arrangements" have been made for the support of the children before it can grant an order for divorce. As you might expect, a ''reasonable arrangement'' usually means that child support is being paid according to the [[Child Support Guidelines]]. If you have children, you will have to prove that the children are being provided for as the Guidelines require before you can get a divorce. Remember that under the Guidelines, the table amount of child support payable for incomes of less than $10,800 per year is zero.

The only possible exception to this rule would be if the parent to whom child support is payable cannot be found, and the child support payments therefore cannot be paid. In such circumstances the court may make a divorce order that doesn't refer to child support, or it may make an order that merely refers to the payor's obligation to pay child support without fixing an amount payable.

==The divorce order==

In order to get a divorce order, the court must be satisfied that:

*the marriage legally exists,
*at least one of the parties has been ordinarily resident in British Columbia for at least one year before the proceeding began,
*the ground on which marriage breakdown in claimed has been proven, and,
*if there are children, an adequate amount of child support is being paid.

It is possible to oppose an application for a divorce order. Practically speaking, however, by the time the application gets before a judge, the responding party has usually come to realize that a divorce is inevitable. If the court is satisfied that the applicant is entitled to his or her order because the grounds for the divorce have been proven, the divorce is usually granted despite any objections by the other spouse.

===Corollary relief===

An order for divorce can be made on its own or together with ''corollary relief''. Typical orders for corollary relief include orders about the care of children, child support, and spousal support.

Divorce orders are usually made after all of the corollary issues, if any, have been dealt with, either as a result of a trial or a settlement reached following negotiations. The court will be reluctant to make a divorce order until all of the legal issues have been addressed.

===The appeal period===

Orders for divorce usually contain a term that "this order shall not take effect until the 31st day after its pronouncement." This is to allow the appeal period to expire. Once those 31 days have passed, however, the parties are officially divorced and are free to remarry if they wish.

It is possible to abridge this appeal period, if the divorce must take effect sooner for some urgent reason such as remarriage. If this is the case, you should advise the court of the need for haste, and a waiver of appeal will have to be filed.

===Certificate of divorce===

Once the appeal period has expired, either party may apply to the court, for a small filing fee, for a Certificate of Divorce. This is, strictly speaking, unnecessary, as the order is itself sufficient proof of divorce. Nevertheless, people often want this certificate to obtain a sense of closure, or because they expect to marry within the next couple of years, or because they may wish to prove they are divorced without having to disclose the other terms of their divorce order. Most family law lawyers take care to prepare Certificates of Divorce nicely in a format suitable for framing.

==Foreign divorce orders==

Section 22(1) of the ''Divorce Act'' deals with the effect in Canada of divorces obtained outside Canada. In a nutshell, if a divorce was properly granted by the foreign country the parties will also be considered to be divorced here, without the need to obtain a Canadian divorce order.

Of course, there is a small catch. Either spouse must have been "ordinarily resident" in the country in which the divorce was obtained for at least one year before the divorce proceedings started. In other words, if you've lived in Sri Lanka for less than a year before you started your application for divorce, your divorce may not be recognized in Canada even though it's perfectly good in Sri Lanka. As long as you had lived in Sri Lanka for more than one year before you started your application, your divorce there will be valid in Canada.

Even if a foreign divorce isn't good under Canadian law, everyone will usually accept the fact that the spouse is divorced. Whether the divorce meets Canadian requirements will only ever become an issue if one of the spouses later claims that the divorce is not valid. This can have some fairly serious consequences, mostly involving the division of property and pensions. You can find more information about the property entitlements of married spouses in the chapter [[Property & Debt in Family Law Matters]] within the section [[Dividing property & debt in Family Law Matters]].

==The do-it-yourself divorce==

The only way to obtain an order for divorce is by starting a court proceeding; you must sue your spouse if you want to get divorced. The do-it-yourself process, called the ''desk order divorce process'', allows you to obtain a final order for divorce without ever having to appear in court, and the order can deal with all of the issues between you and your spouse, from divorce to the division of property to child support.

You can get your divorce yourself using the desk order divorce process, without having to retain a lawyer. While some of the court forms can be a bit daunting, there are plenty of resources, such as this website, that can help you unravel the mysteries and complete the process on your own.

Generally speaking, a desk order divorce is appropriate in two situations:

#when the only issue between you and your spouse is getting a divorce; or,
#when you have other issues, but those have been settled, either through a separation agreement or an agreement about the terms of a consent order.

In the first case, a desk order application will be for a divorce alone. In the second case, a desk order application will be an application for a divorce plus ''corollary relief'', that is, orders apart from the divorce order itself, such as orders dealing with care of children, support, or the division of assets.

Most court proceedings go like this: the claimant files a Notice of Family Claim and serves it on the respondent; the respondent then files a Response to Family Claim and sometimes a Counterclaim. If the respondent fails to file a Response to Family Claim, the claimant's court proceeding is said to be ''uncontested''. This means that the respondent is assumed to either agree with the relief sought by the claimant or to have chosen not to defend the claim. In such circumstances, the claimant is free to seek a ''default judgment'' against the respondent.

A desk order divorce application is essentially an application for a default judgment, whether the claimant's court proceeding is for a divorce order alone or for a divorce order with corollary relief, and is governed by Rule 10-10 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules].

For a brief summary of this process, go to the ''How Do I?'' section of this resource and read [[How Do I Get Divorced?]] It's located under ''Marriage, Separation & Divorce''.

There are two types of desk order divorce actions:

#the sole application process, in which only one spouse is responsible for ushering the process through; and,
#the joint application process, in which the spouses work together to get the job done.

There are a few important differences between sole applications and joint applications.

*Joint applications are quicker and cheaper, but the spouses will have to cooperate with each other. In a sole application, no cooperation is required.
*A sole application takes a little longer since the person bringing the action has to serve the other spouse with the Notice of Family Claim and wait 40 days before proceeding. In a joint application, service is not necessary and you can apply for the divorce order right away.
*In a sole application, the spouses are called the claimant and respondent. In a joint application, the spouses are called claimant 1 and claimant 2.
*In a joint application, both spouses must sign the Notice of Family Claim, and both must execute an affidavit for the application for the divorce order.

===The sole divorce application===

These instructions are for the sole divorce application process.

'''Step One'''

<blockquote>Prepare your Notice of Family Claim. Make three copies of the original.</blockquote>

'''Step Two'''

<blockquote>Go to your local registry of the British Columbia Supreme Court. Bring the original Notice of Family Claim and the three copies you have made of it. Also bring the original of your government-issued Marriage Certificate. Fill out the Registration of Divorce Proceeding form, which will be available at the courthouse. File all of these materials and pay the $210 court fee. The court will stamp the action number and the court seal on all copies of your Notice of Family Claim, keep the original, and give you back the three duplicates. Your Marriage Certificate will go into the court file.</blockquote>

'''Step Three'''

<blockquote>Serve your ex with your Notice of Family Claim. You cannot serve your ex yourself; you must arrange for someone else to do it. Give the person who will be your process server two copies of your Notice of Family Claim, along with a photograph of your ex. The process server will serve one copy of the materials on your ex, and will use the photograph and the remaining copy in his or her Affidavit of Personal Service to prove that your ex was served.</blockquote>

'''Step Four'''

<blockquote>Once your ex is served, wait 40 days. Technically, you only need to wait 31 days from the date of service, but it doesn't hurt to add a few days just to be sure. If your ex files a Response to Family Claim or Counterclaim in this period, there's a problem. Read the discussion in "What happens if a response or counterclaim are filed?" at the end of this section.</blockquote>

'''Step Five'''

<blockquote>Prepare your Requisition asking the court for the divorce order, your Divorce Affidavit in support of the application, a draft of the order you want the court to make, and the Registrar's Certificate. If you have children, you will also have to prepare a Child Support Affidavit, which sets out the details of your income and your spouse's income and the terms on which child support will (or won't) be paid.</blockquote>

'''Step Six'''

<blockquote>Go to the court registry you filed your materials at, and file your Requisition, your Affidavit, your Child Support Affidavit if required, your Registrar's Certificate, your draft order, and your process server's Affidavit of Personal Service. Pay the $80 court fee.</blockquote>

'''Step Seven'''

<blockquote>Once you've filed your application, wait four weeks.</blockquote>

'''Step Eight'''

<blockquote>Start calling the court registry to see whether your order is ready for you to pick-up. This should take four to eight weeks, depending on how busy the court is. When your order is ready, go to the courthouse to get the entered order, and then mail a copy to your ex.</blockquote>

Once you've got your entered divorce order and 31 days have passed, you are officially divorced, and you have a court order bearing the seal of the court to prove it. Some people may find that a Certificate of Divorce is necessary in order to remarry. If you wish to get this Certificate, this is what you must do:

'''Step Nine'''

<blockquote>Wait 32 days from the date the divorce order was made. The date will be shown on the first page of the order.</blockquote>

'''Step Ten'''

<blockquote>Prepare your draft Certificate of Divorce and file it in the court registry, together with a Requisition asking the registry to complete the Certificate. Pay the $40 court fee, and grab a chair. The registry will normally complete your Certificate of Divorce while you wait.</blockquote>

===The joint divorce application===

The joint divorce application process is almost exactly the same as the sole divorce application process, except that some of the forms are different, service is not required, and the length of time it takes to get a divorce is about four to eight weeks in total.

These are the main differences between the joint application process and the sole application process:

*The parties are known as claimant 1 and claimant 2.
*A special form, Notice of Family Claim is required.
*Both parties sign the Notice of Family Claim.
*The Notice of Family Claim does not need to be served on anyone, and there is no waiting period that must pass before the application for the divorce order can be made.
*Both parties must swear an affidavit in support of the application for the divorce order.
*All of the documents can be filed at once, although at least one of the affidavits in support of the application must be sworn after everything else is filed, even if only by a few minutes.

If either party withdraws from the joint application process before the divorce order is made, there's a problem. Read the discussion in "What happens if a response or counterclaim are filed?" at the end of this section.

These instructions are for the joint divorce application process.

'''Step One'''

<blockquote>Prepare a joint Notice of Family Claim. Prepare and execute one Divorce Affidavit in support of the application; prepare your blank Registrar's Certificate; prepare and complete your Requisition to apply for the divorce order; and, prepare your draft order. Make two copies of everything. Prepare but do not execute the other Divorce Affidavit.</blockquote>

'''Step Two'''

<blockquote>Go to your local registry of the British Columbia Supreme Court. Bring all the documents listed in Step One and the original of your government-issued Marriage Certificate. Fill out the Registration of Divorce Proceeding form, which will be available at the family and divorce counter. File all of these materials (except the unexecuted affidavit) and pay the $290 court fee. The court will stamp the action number and the court seal on all copies of your Joint Notice of Family Claim, keep the original, and give you back the two duplicates. Your Marriage Certificate will go into the court file.</blockquote>

'''Step Three'''

<blockquote>While you're at the registry counter, execute the remaining affidavit in support of the application for divorce, and pay the $40 court fee.</blockquote>

'''Step Four'''

<blockquote>Once you've filed your application, wait four weeks.</blockquote>

'''Step Five'''

<blockquote>Once four weeks have passed, start calling the court registry to see whether your order is ready for you to pick-up. This should take four to eight weeks, depending on how busy the court is. When your order is ready, go to the courthouse to pick the entered order up, and then mail a copy to your ex.</blockquote>

Once you've got your entered divorce order and 31 days have passed, you are officially divorced, and you have a court order bearing the seal of the court to prove it. Some people may find that a Certificate of Divorce is necessary in order to remarry. If you wish to get this Certificate, this is what you must do:

'''Step Six'''

<blockquote>Wait 32 days from the date the order was made. The date will be shown on the first page of the order.</blockquote>

'''Step Seven'''

<blockquote>Prepare your Certificate of Divorce and file it in the court registry, together with a Requisition asking the registry to complete the Certificate. Pay the $40 court fee, and grab a chair. The registry will normally complete your Certificate of Divorce while you wait.</blockquote>

With the exception of the special form, Notice of Family Claim, all of the forms used in the joint process are the same as the sole process, except that the parties aren't called claimant and respondent, they're called claimant 1 and claimant 2.

===Free services===

The Salvation Army's pro bono program and Access Pro Bono offer free meetings with lawyers who can review your forms with you before you file them in court. In some cases, the Salvation Army may also be able to prepare your documents for you. Although the lawyers available through these programs are not likely to prepare your documents, they will give them a check to make sure that the registry will accept them.

The British Columbia Continuing Legal Education Society has published an excellent guide to the desk order divorce process called the Desk Order Divorce Manual, which has samples of the different clauses you may need to complete your court forms. This book is available at your local courthouse library.

===Services that are not free===

====Lawyers====

You're usually best off if you hire a lawyer to handle your divorce for you, as your lawyer will be familiar with the nuances and complications of the desk order divorce process and can give you expert advice about the short- and long-term advantages and disadvantages of the arrangement you've worked out with your spouse. This can be critical where the terms or circumstances of your divorce are unusual or complicated.

Lawyers, however, come at a cost. You should expect that you will be charged fees of anywhere between $500 and $2,000 for your divorce, plus the lawyer's out-of-pocket expenses for things like court fees and photocopying.

====Commercial services====

A local company called Self-Counsel Press publishes a kit for the desk order divorce process. The kit, which costs something like $25 to $35, contains all the forms necessary to apply for a desk order divorce, plus instructions on how to make the application. Make sure that the kit you buy has forms that are current to the changes made on 18 March 2013.

There are a number of commercial services available online that will prepare all of the necessary documents for you, including:

*http://www.divorceoptions.ca
*http://www.untietheknot.ca
*http://www.britishcolumbiadivorce.ca

If I understand things correctly, untietheknot.ca will also file your documents in court for you. A Google search for the phrase "desk order divorce BC" should provide you with a few other options, but whatever you do, make sure you're using a service that offers the forms required for a divorce in British Columbia!

===What happens if a response or counterclaim are filed?===

The do-it-yourself divorce process is based on the idea that either everyone agrees to get divorced or no one is going to object to the divorce. The process will go off the rails if:

*'''Sole Application:''' the respondent files a Response to Family Claim or a Counterclaim; or,
*'''Joint Application:''' a claimant withdraws from the process and files a Response to Family Claim or a Counterclaim.

In either situation, the divorce action will cease to qualify as an ''undefended family law case'' within the meaning of Rule 1-1(1) and cannot proceed as a desk order. The divorce action will continue like any other contested family law case and proceed to trial if a settlement cannot be reached.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/80mh Federal Child Support Guidelines]''

===Links===

* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/divorce.php Legal Services Society’s Family Law Website: Divorce]
* Online Divorce Services:
**[http://www.divorceoptions.ca DivorceOptions.ca]
**[http://www.untietheknot.ca Untie The Knot Divorce Service]
**[http://www.britishcolumbiadivorce.ca Canadian Divorce Online]

{{REVIEWED | reviewer = [[JP Boyd]], March 24, 2013}}

{{JP Boyd on Family Law Navbox|type=chapters}}

[[Category:Marriage, Separation & Divorce]]

{{Creative Commons for JP Boyd}}

Separating Emotionally

2013-05-05T21:43:56Z

Gayla Reid: /* The results of anger */

{{JP Boyd on Family Law TOC|expanded = separation}}
{{LSSbadge
| resourcetype = more information on
| link = [http://www.familylaw.lss.bc.ca/legal_issues/divorceBasics.php Divorce and Separation basics]
}}The previous section discussed the law about separation. This section talks about the emotional dimensions of separation. The laws and the courts only deal with a narrow slice of all the things that go on when a relationship ends and often ignore, because they must, the larger emotional and psychological issues.

These issues, however, influence a couple's ability to work together after separation and often play a huge role in determining how a separating couple will go about resolving their legal problems. An understanding of the emotions involved in separation can help to reduce conflict and the cost of resolving the legal issues involved in separation.

This section applies to both married and unmarried couples. It provides an introduction to separating emotionally, looks at the grieving process that accompanies the end of a long-term relationship, and discusses how the emotional aspects of separation can impact on the resolution of the legal issues a couple might have to deal with.

==Introduction==

Ending a long-term relationship, whether married or unmarried, is not just a matter of packing your bags and walking out the front door. Separation stirs up incredibly powerful emotions that can take a surprisingly long time to work through; many counsellors liken these emotions to the grieving process that follows the death of a loved one. Chief among these emotions are love, anger, remorse, and sadness, and separating couples often find themselves experiencing these emotions in a very intense manner and cycling through them over and over.

These emotions often wind up clouding a person's judgment. You can find yourself doing things and saying things you never thought you would, or doing things you promised you'd never do again. You can find yourself looking at your partner and wondering who the hell this person really is, and how can he or she be so different from the person you were together with for so long. Unrecognized and unmanaged emotions can take over the emotional and legal processes of separation like a runaway train and take you down tracks you never anticipated.

The emotions involved in separation are normal. Everyone experiences them, although we each process these emotions in our own way. From a lawyer's perspective, the key problems that must be processed in the midst of these distorted and confused feelings are:

#settling the legal issues that crop up at the end of a relationship,
#obtaining reasonable instructions from the client,
#separating anger from the negotiation process,
#separating anger from the litigation process, and
#ensuring that the conflict doesn't spill out onto the children.

The vast majority of couples can resolve their issues through negotiation or mediation, no matter how angry they are with one another. Where a couple simply cannot separate the emotional baggage of separation from the resolution of the legal issues that come at the end of their relationship, litigation may be inevitable.

Many studies have shown that mediation and collaborative settlement processes produce agreements that are better for both parties and better for the children, and that last longer than the results of litigation. Mediation and collaborative processes can help a couple to work through their individual emotional issues and can produce an agreement that isn't so much a legal contract as it is a moral contract. Parents especially tend to deal with each other, and with their children, with a lot less rancour following a mediated or collaborative resolution of their problems.

Litigation is sometimes necessary, even when a couple is capable of a less antagonistic choice: when a party threatens to flee with a child; where there is a history of abuse or where abuse seems imminent; and, where a party is threatening to do something rash with family property.

When litigation is provoked by emotions arising from the end of the relationship and isn't really necessary, then you can run into some serious and expensive problems:

*One or both people will adopt an entrenched and unreasonable position about things like the children and other family issues, sometimes a position that they would never have considered taking. Sometimes positions are adopted out of spite or vindictiveness.
*The emotional tension will worsen, particularly when you see things you thought were long buried in the past put into an affidavit. There will be backstabbing, accusations, and wounded feelings.
*There is an increased risk of the children being used to goad the other parent, although sometimes unintentionally.
*There is an increased risk of the alienation or estrangement of a child from a parent, and the permanent impairment of the child's relationship with that parent.
*There will be many interim applications and the litigation may not be settled even with a trial. In circumstances like these, the litigation many never truly end, especially when there are children involved.
*The litigation will cost an enormous amount of money, and you risk losing the equity in the family assets to court fees and legal fees.
*At the end of the day, you risk being permanently unable to communicate effectively with your former partner. This can be a serious problem when children are involved.

As a result of all of this, it can be critical to get a grip on your emotions right out of the starting gate. While all of these emotions are common, natural, and entirely understandable, failing to recognize and manage them can lead to disastrous short- and long-term consequences to your emotional well-being, your relationship with your children, your children's emotional well-being, and your financial situation. If you are having trouble managing your feelings and you have children, see a counsellor as soon as possible.

===Parenting after separation===

When a couple have children, they must accept that they will remain a permanent part of each other's lives, whether they like it or not. A couple may no longer be partners, but they will always be parents. The parental relationship does not end with the romantic relationship.

It is impossible to emphasize enough how important it is to always put the children first. This may sound a bit trite, but putting the children ahead of yourself can be an extremely challenging task when you are also trying to cope with the intense emotions involved in separation. It can be tremendously difficult to refrain from badmouthing your former partner to the children, "forgetting" to drop them off on time, and using them as a weapon.

The [http://www.justicebc.ca/en/fam/help/pas/index.html Parenting After Separation program] is available throughout British Columbia. In my view, all couples with children can benefit from this program, no matter how well or poorly you think you and your former partner get along.

The Parenting After Separation (PAS) program can offer important advice about talking to your children about the separation, talking about your former partner with the children, and talking with your former partner in ways that avoid hurting and wounding and are focused on the children.

Information about parenting after separation, including contact information for the different agencies that offer the PAS program, is available in the chapter [[Children in Family Law Matters]] within the section [[Parenting After Separation]]. As well, some very good research papers and literature reviews about parenting after separation, the costs of high-conflict separation, and other topics relating to the child's well-being and outcomes following separation can be found at the [http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/tool-util/topic-theme/index.html website of the Department of Justice]. These papers are of a uniformly high quality and are well worth the read.

===A few final notes===

I am not a psychologist, a psychiatrist or a counsellor. As a result, this section should be read with a grain of salt as it is based on my observations of my clients' experiences and a healthy dose of common sense. For the same reason, this section should not be used as an authority for the propositions it sets out.

Finally, there are a ton of resources available to help you cope with the separation process and keep the emotionally harmful aspects of the process away from your children. In addition to public programs, many counsellors specialize in helping people work through the emotional turmoil that often follows the end of a long-term relationship.

Since counsellors are unregulated, anyone can hang a shingle saying that they offer counselling services. What you should be looking for are people with the designation of Registered Clinical Counsellor (RCC), Certified Canadian Counsellor (CCC) or Registered Psychologist (RPsych).

*The website [http://www.counsellingbc.com/ counsellingbc.com] offers a list of subscribing counsellors by area of practice.
*The [http://bc-counsellors.org/ BC Association of Clinical Counsellors] also maintains a referral list of its members.
*The [http://www.bcamft.bc.ca/ohana/website/index.cfm?p=95575656796 BC Association for Marriage and Family Therapy] has a referral list and helpful information about how to choose a counsellor.

==The grieving process==

Many counsellors liken the process of emotionally separating from a long-term relationship to the grieving process that happens when a loved one dies. In general, this process can be expected to take one to two years to complete. Dr. Elizabeth Kubler-Ross, in her book ''[http://www.worldcat.org/title/on-death-and-dying/oclc/4238 On Death and Dying]'', describes a five-stage model of grief, and how grief affects our ability to make decisions in each stage.

*'''Shock and denial:''' "This isn't happening to me!" An initial paralysis at hearing the bad news; trying to avoid the inevitable. People usually avoid making decisions or taking action at this point.
*'''Anger:''' "Why is this happening to me?" A frustrated outpouring of bottled-up emotion. Making decisions at this point is difficult because all one's energy gets put into the emotion rather than problem-solving, and the other partner is usually vilified.
*'''Dialogue and bargaining:''' "I promise I'll be a better person if..." Seeking in vain for a way out; seeking paths that might offer a solution. People generally become more willing to explore alternatives.
*'''Depression and detachment:''' "I just don't care anymore." A final realization of the inevitable. It is hard to make reasonable decisions at this stage because of the sense of resignation.
*'''Acceptance:''' "I'm ready for whatever comes." Finally finding the way forward. Decisions are much easier to make because people have found new purpose, having begun to accept the loss.

Dr. Robert Emery agrees that the Kubler-Ross model applies to separating, but he looks at the grief process in a slightly different way. In his book ''[http://www.worldcat.org/title/renegotiating-family-relationships-divorce-child-custody-and-mediation/oclc/30474579&referer=brief_results Renegotiating Family Relationships]'', Dr. Emery describes the grieving process as a cycle of love, anger, and sadness, which gets repeated in varying degrees of intensity as a person works his or her way through the Kubler-Ross stages, from shock and denial through to acceptance of the end of the relationship.

In his excellent book ''[http://www.worldcat.org/title/truth-about-children-and-divorce-dealing-with-the-emotions-so-you-and-your-children-can-thrive/oclc/53485317&referer=brief_results The Truth about Children and Divorce]'', Dr. Emery says this:

<blockquote>"Over time the intensity of the emotions diminishes and people usually find that the feelings begin to blend. Early on, the grief of divorce is experienced as an intense period of feeling nothing but love, followed by an equally intense period of feeling nothing but anger, followed by an equally intense period of feeling nothing but sadness. ... Over time, however, the intensity of the feelings begins to wane, and the cycles of each emotion begin to blur and run into the other two. This overlapping of emotion results in a realistic, less emotionally painful view of the divorce.</blockquote>
<blockquote>"When the blending does not occur, people get stuck in one emotional cycle or another. Someone who gets stuck on love may deny the reality of the breakup and pine for reconciliation; someone caught up in anger will act out of vindictiveness and a need for revenge; those mired in sadness will assume an exaggerated and unrealistic sense of responsibility for what has occurred."</blockquote>

For most people, the difficult thing is that knowing about the stages of divorce and the grief cycle does precious little to actually solve the problem. You can intellectually know what's going on, but knowing what's going on doesn't mean that the emotions go away; there is no magic light switch that you can flip to turn your emotions off. Knowing about the emotional roller coaster can, however, keep you aware of what is motivating your reactions to your former partner and help you contain your emotions while you are negotiating the fallout from the end of your relationship.

It is important to remember that you and your former partner are probably not going to be at the same stage of the grieving process. One person can come to the conclusion the relationship is over long before separation and reach acceptance, while the other person is still in shock and denial that the relationship has ended. This is another factor that will aggravate feelings between you and your former partner.

Each person's goal at the end of the day is to find acceptance, that moment when you don't recognize your former partner's voice on the telephone right away. As Dr. Emery has observed, the opposite of love isn't hate; it's indifference.

===A warning about allies===

All of us seek allies as we cope with the end of a relationship. It's human nature. Allies may be found in family members, friends, co-workers, or a new boyfriend or girlfriend. While we all appreciate the support that allies can offer, allies can also polarize your position about your former partner, and sometimes encourage you to take an unreasonable and entrenched position when you need to be more flexible.

Allies take sides. That's just what they do. Imagine going to your mom or dad in tears, complaining about your former partner. Your parent's job isn't to say "Well, really Bob is a fine person and a great father, you really should lighten up a little and remember his good qualities." Their job is to comfort you, and that often means saying "Yeah, you're right, I can't believe what a complete asshole Bob is being! Whatever did you see in him anyway?"

You shouldn't stop seeking reassurance and comfort from your allies, but you should try to be alert to the influence allies can have, even though they're not intentionally trying to worsen the issues you and your former partner are dealing with.

===A warning about parenting===

Some people best manage a breakup by walking out the door and never looking back, and doing their grieving alone. This just isn't possible where there is property to manage and divide, and it's especially not possible when a couple have children. You can't change your phone number, you can't stop answering the phone, and you can't refuse to see your former partner if you have children. You are still mom or dad, and you'll always be mom or dad and have a relationship with the other parent until or unless your children predecease you.

As a result, it is even more critical for you to properly manage the roller-coaster emotions of separation when you have children. You may be caught up in a whirlwind of anger and remorse at the present, but you have to think of the long-term effect of any rash behaviour. Do you want to be able to attend your child's graduation ceremony? Do you want to go to your child's wedding? How do you want your child to think of you in five years?

It is enormously difficult, but you simply must keep a button on your emotions while you grieve. Dr. Emery offers these suggestions in ''The Truth about Children and Divorce'':

*First, draw clear boundaries around your relationship with your former partner. Let your partner know what you're prepared to talk to him or her about, what information you're prepared to share, and what if anything you're prepared to do with the children together.
*Second, use those boundaries to form a more business-like relationship with your former partner. The two of you may not be friends, but together you are engaged in the "business" of parenting your children. Keep your emotional distance from your former partner.
*Third, respect these new rules. Don't intrude past those boundaries and keep your discussions focused on parenting. It may be hard not to react when your former partner pushes your buttons, but you're best off following this old saying: don't say anything if you don't have anything nice to say.

===A warning about children===

It can be extremely tempting to rely on your children to comfort you as you go through the grieving process. One word: ''don't''. Whatever else you do, don't do this.

Children will be well aware when something's wrong. They will know when you're upset, when you're withdrawn, and when you're crying. Younger children will react with confusion and possibly fear. Older children who are more emotionally sophisticated will want to comfort you. There's nothing wrong with this either, but you do need to control your emotions.

When a child becomes too involved in soothing a parent, there are two main risks: you may develop an overly adult relationship with the child and burden the child with too much information about what's going on, information that is usually age-inappropriate; or, the child may turn into a caretaker, handling your emotions, picking up the housework that's falling behind, and assuming a parenting role towards any younger children.

According to Dr. Emery, "extreme emotional care taking is developmentally inappropriate and can have long-term consequences on children's mental health." Children who grow up too soon are robbed of their right to be children. In the long-term they have trouble forming meaningful relationships, they may be emotionally distant, and they may be compulsively over-responsible.

==Resolving the issues==

There are a variety of ways to resolve the issues that arise when a relationship ends, the most common of which are negotiation, mediation, and litigation. Collaborative law is sort of a cross between negotiation and mediation.

Litigation is a contest between two parties, at the end of which, following trial, there is a winner and a loser. That's a bit of a gloss on things, but litigation really is adversarial in nature, and if the parties can't come to an agreement between themselves, a trial will be held and a judge will impose a resolution on the parties.

With mediation and negotiation, it's the parties themselves who come up with the resolution of their issues. Mediation in particular is cooperative in nature, and requires both parties to commit themselves to a dialogue aimed at finding a solution. There is no winner and no loser, as mediation and negotiation both demand accommodation, and neither party gets exactly what they want; these processes are about compromise.

Unless there is a pressing and manifest urgency, in my view negotiation and mediation are to be preferred over litigation. While it is absolutely true that in some situations court is the only way out, most people can find compromise no matter how wound up their emotional states happen to be.

In ''The Truth about Children and Divorce'', Dr. Emery describes three general categories of divorcing couples: the angry divorce, the distant divorce, and the cooperative divorce. While these categories are not exactly exhaustive and are drawn from an American legal construct, they are useful in discussing the impact of emotional separation on negotiation, mediation, and litigation.

===The cooperative separation===

Couples engaged in a cooperative separation have usually worked out a lot of their emotions and resolved much of their grief. They recognize their emotions for what they are, and avoid acting out of spite or tearfully reminiscing about the lost relationship. These couples attempt to work things out between themselves, with or without help from lawyers and mediators.

Cooperative separations usually result in a separation agreement or an order that they agree the court should make. Often, what little litigation may occur is limited to simply getting the divorce order.

===The distant separation===

Couples in a distant separation are able to keep their conflict from their children, but are still dealing with feelings of hurt, resentment, anger, and pain. While there is plenty of intense anger, this emotion usually fades to a growing dislike or indifference. These couples have done a lot less emotional work on their feelings, and their recollections of the relationship are characterized by bitterness rather than sadness.

These couples are not friends but know better than to become enemies, perhaps because of the children or past experience with the court system. They deal with each other minimally, without a great deal of warmth or demonstrated anger.

===The angry separation===

This, of course, is the type of separation to be wary of. These separations are also known as "high-conflict" separations. Couples in an angry separation have trouble letting go of the marriage, and feel intense pain and anger. Their emotions are usually raw and neither party has done a great deal to manage their feelings.

These couples have the hardest time dealing with each other and the legal issues between them, as they focus on "fault" and "blame," and are often unable to stop themselves from lashing out hurtfully. Resolving the issues is the most difficult for these couples, and they are the most prone to protracted, ugly litigation.

Couples in an angry separation, particularly those with children, generally need to get professional help in dealing with the emotional fallout from the end of the relationship if they are to avoid court and learn to cope with each other and their feelings in the months and years to come.

Angry separations are the sort that lawyers most often wind up dealing with. The epic battles couples engaged in an angry separation are capable of can barely be described. The legal issues arising from the breakup are rarely concluded within two years, and, when there are children, can run for six or more years! A trial rarely resolves issues between these couples, as they will often keep fighting long afterward about real or imagined changes in their respective circumstances following judgment. These couples are also living proof that money doesn't buy happiness — it buys you litigation, and lots of it.

===Anger===

By now, you will have guessed that the irrational thinking anger triggers can be the most important roadblock to resolving family law issues in a cooperative manner. Anger is an incredibly powerful emotion characterized by Dr. Emery as "the toxic residue of unresolved grief."

Anger also does a lot of very odd things that not many people are aware of. Ignorance of these different functions of anger can slow the grieving process, entrench unreasonable positions, and protract the resolution of the issues flowing from the end of a relationship.

====Anger avoids other emotions====

Anger can be used to divert blame from yourself and avoid feelings of guilt. People experiencing anger as a shield are often avoiding accepting responsibility for, perhaps, an affair or being the one who announced the end of the relationship. It can also stop you from experiencing the other primary emotions in the grieving process, sadness and love.

====Anger prolongs the relationship====

Intense anger can also signal that you are not yet done with the relationship. Conflict can be a way of drawing a former partner closer by getting their attention and maintaining the emotional relationship. Underneath this kind of anger remains love and a continuing attachment to a former partner, as illogical as this sounds.

====Anger hides fear====

The process of separation contains a lot of threats, whether real or imagined. Many of these threats are obvious: the risk of losing an asset, the risk of not being able to have another romantic relationship, the risk of losing one's children. Fear triggers the fight-or-flight response; anger can be a manifestation of the fight response.

====Anger blinds====

Anger can stop you from recognizing positive steps your former partner is taking to resolve issues, and lead you to assume that your partner is acting on false pretenses or on a hidden agenda. This kind of anger breeds suspicion that is often unwarranted.

Anger can also stop you from acknowledging your former partner's good qualities, especially around parenting issues. Avoiding admitting these qualities makes it easier to hold onto an objectively unreasonable position.

====Anger is easy====

For people who are emotionally bottled up, the emotions wrapped up in the grieving process can be very difficult. Both sadness and love can be difficult to acknowledge and deal with, particularly when feeling those emotions is associated with a loss of face. As a result, anger can be the easiest emotion to deal with and less painful to experience.

====The results of anger====

Apart from slowing down the grieving process, anger inevitably delays the resolution of the issues that come from the end of a relationship. An enraged person is not going to be able to negotiate since negotiation involves making concessions; an enraged person is mostly going to want to litigate. People in this state of mind make threats like "I'm going to take you for everything you've got," or "you'll never see the children again." They will also tell their lawyers that "it doesn't matter what it costs or whether I'm likely to lose, it's the principle of the thing!"

Sometimes these threats come true, and the consequences to both parties can be enormous.

*Someone who takes an unreasonable position out of anger will lose, but in carrying out their crusade they risk draining all of the family's assets to fund the litigation.
*Rage can permanently impair a couple's relationship with one another. Where there are no children, this may not be a problem, but where there are children this can be disastrous. You may not give a fig about your former partner, but what memories will your children have of the next five years of their lives?
*People can jump to ridiculous conclusions by expecting the worst from their former partner, leading to conflict after conflict ― and court application after court application. Redness on the buttocks of a toddler becomes evidence of molestation, rather than simple diaper rash.
*Rage can trigger "affidavit wars," in which each person makes inflated claims about the purported evils of the other. Minor events are exaggerated beyond all proportion. The costly "war" is triggered because the other party is put to the burden of addressing each inflated claim. Very rarely is a party able to refrain from making reciprocal claims about the misconduct of the other: "I drink all the time? Actually, I only drink socially but you smoked pot when you were pregnant." What is a judge to make of claims like these?
*Anger can strip you of your ability to see common sense and lead you to adopt positions that are objectively unreasonable and doomed to fail. In the process of failing, however, you can expect to spend a lot of money and further damage the tensions in your relationship with your former partner.

Rage, as Dr. Emery observes, is a symptom of unresolved grief. Whatever the cause, failing to move beyond anger can be poisonous to you, to your former partner, to your children, and to your relationship with your children. Some counselling, whether by yourself or with your former partner, can be critical in moving forward and out of anger.

===Choosing your lawyer===

Your choice of lawyer can play a large part in determining how your separation unfolds. Many lawyers are quite open to mediation and collaborative settlement processes, while a few others see litigation as the only means of resolving a dispute, particularly lawyers who have a reputation as being bulldogs. Other lawyers do not take their duty to respond promptly to correspondence particularly seriously, which will delay things and may result in an unnecessarily large number of interim applications. Still other lawyers see their duty as limited to militantly carrying out their clients' instructions, without supplying a great deal of options or cautions as to the likely effect of those instructions.

The best family law lawyers give their clients a common-sense analysis of their situation, based on probable outcomes and their expert knowledge of the law, and encourage their clients to take positions that are objectively reasonable. These lawyers will usually pursue settlement, both before and after litigation has started, and see litigation as a last resort. They are open to negotiation and mediation and other out-of-court processes, although they may prefer a result-oriented mediation process rather than the lengthier traditional mediation process that also tries to address emotional issues.

While some people, particularly those in angry separations, feel an almost irresistible urge to go out and hire the toughest bulldog around to exact revenge against their former partner, bulldogs rarely see any resolutions other than: a settlement on exactly the unreasonable, extortionate terms their clients want; or, a knock-down drag-'em-out trial. These lawyers cost the most, and you can expect the litigation process to drag out for an ungodly amount of time — with absolutely no guarantee of a better result than what you would have had if you'd taken a different, less antagonistic approach.

Even if you are in an angry separation, step back and take a breath. Remember that even though you may hate your former partner at present, you will have to live with the consequences of hasty litigation and your unreasonable positions well into the future. You might also lose your house to pay your lawyer's fees.

How do you find a lawyer? By reputation. Ask around; talk to friends who have had to deal with family lawyers before; ask for referrals from the other professionals in your life. You can also window shop. You don't have to hire the first lawyer you have a consultation with; go ahead and set up meetings with a bunch of different lawyers. You can find additional information about hiring a lawyer in the chapter [[Introduction to the Legal System for Family Matters]] within the section [[Lawyers & The Law Society]].

You should also know that many lawyers who litigate are also accredited family law mediators. If the lawyer you're speaking to is also a family law mediator, you may want to enquire about the possibility of using his or her services to mediate your dispute before you say much more about your case. If you give the lawyer too much information about your situation, he or she may not be able to assume the impartial role demanded of a mediator.

===Required reading===

*''[http://www.worldcat.org/title/renegotiating-family-relationships-divorce-child-custody-and-mediation/oclc/30474579&referer=brief_results Renegotiating Family Relationships]'', by R.E. Emery
*''[http://www.worldcat.org/title/truth-about-children-and-divorce-dealing-with-the-emotions-so-you-and-your-children-can-thrive/oclc/53485317&referer=brief_results The Truth about Children and Divorce]'', by R.E. Emery (Read this book!)
*''[http://www.worldcat.org/title/rebuilding-when-your-relationship-ends/oclc/5707044&referer=brief_results Rebuilding: When Your Relationship Ends]'', by B. Fisher and R.E. Alberti
*''[http://www.worldcat.org/title/healing-hearts-helping-children-and-adults-recover-from-divorce/oclc/30739454&referer=brief_results Healing Hearts: Helping Children and Adults Recover from Divorce]'', by E. Hickey and E. Dalton
*''[http://www.worldcat.org/title/helping-your-kids-cope-with-divorce-the-sandcastles-way/oclc/37300625&referer=brief_results Helping your Kids Cope with Divorce the Sandcastles Way]'', by M.G. Neuman
*''[http://www.worldcat.org/title/joint-custody-with-a-jerk-raising-a-child-with-an-uncooperative-ex-a-hands-on-practical-guide-to-communicating-with-a-difficult-ex-spouse/oclc/682894488&referer=brief_results Joint Custody with a Jerk: Raising your Child with an Uncooperative Ex]'', by J.A. Ross



==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''

===Links===

* [http://clicklaw.bc.ca/resource/1640 Legal Services Society’s Family Law Website: Separation]
* [http://www.justice.gc.ca/eng/pi/fcy-fea/index.html Department of Justice Website: Supporting families experiencing separation and divorce]
* [http://www.counsellingbc.com BC Counsellors by Practice Area]
* [http://bc-counsellors.org/ BC Association of Clinical Counsellors]
* [http://www.bcamft.bc.ca/ohana/website/index.cfm?p=95575656796 BC Association for Marriage and Family Therapy]

{{REVIEWED | reviewer = [[JP Boyd]], March 24, 2013}}

{{JP Boyd on Family Law Navbox|type=chapters}}

[[Category:Marriage, Separation & Divorce]]
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Separating Emotionally

2013-05-05T21:38:44Z

Gayla Reid: /* The distant separation */

{{JP Boyd on Family Law TOC|expanded = separation}}
{{LSSbadge
| resourcetype = more information on
| link = [http://www.familylaw.lss.bc.ca/legal_issues/divorceBasics.php Divorce and Separation basics]
}}The previous section discussed the law about separation. This section talks about the emotional dimensions of separation. The laws and the courts only deal with a narrow slice of all the things that go on when a relationship ends and often ignore, because they must, the larger emotional and psychological issues.

These issues, however, influence a couple's ability to work together after separation and often play a huge role in determining how a separating couple will go about resolving their legal problems. An understanding of the emotions involved in separation can help to reduce conflict and the cost of resolving the legal issues involved in separation.

This section applies to both married and unmarried couples. It provides an introduction to separating emotionally, looks at the grieving process that accompanies the end of a long-term relationship, and discusses how the emotional aspects of separation can impact on the resolution of the legal issues a couple might have to deal with.

==Introduction==

Ending a long-term relationship, whether married or unmarried, is not just a matter of packing your bags and walking out the front door. Separation stirs up incredibly powerful emotions that can take a surprisingly long time to work through; many counsellors liken these emotions to the grieving process that follows the death of a loved one. Chief among these emotions are love, anger, remorse, and sadness, and separating couples often find themselves experiencing these emotions in a very intense manner and cycling through them over and over.

These emotions often wind up clouding a person's judgment. You can find yourself doing things and saying things you never thought you would, or doing things you promised you'd never do again. You can find yourself looking at your partner and wondering who the hell this person really is, and how can he or she be so different from the person you were together with for so long. Unrecognized and unmanaged emotions can take over the emotional and legal processes of separation like a runaway train and take you down tracks you never anticipated.

The emotions involved in separation are normal. Everyone experiences them, although we each process these emotions in our own way. From a lawyer's perspective, the key problems that must be processed in the midst of these distorted and confused feelings are:

#settling the legal issues that crop up at the end of a relationship,
#obtaining reasonable instructions from the client,
#separating anger from the negotiation process,
#separating anger from the litigation process, and
#ensuring that the conflict doesn't spill out onto the children.

The vast majority of couples can resolve their issues through negotiation or mediation, no matter how angry they are with one another. Where a couple simply cannot separate the emotional baggage of separation from the resolution of the legal issues that come at the end of their relationship, litigation may be inevitable.

Many studies have shown that mediation and collaborative settlement processes produce agreements that are better for both parties and better for the children, and that last longer than the results of litigation. Mediation and collaborative processes can help a couple to work through their individual emotional issues and can produce an agreement that isn't so much a legal contract as it is a moral contract. Parents especially tend to deal with each other, and with their children, with a lot less rancour following a mediated or collaborative resolution of their problems.

Litigation is sometimes necessary, even when a couple is capable of a less antagonistic choice: when a party threatens to flee with a child; where there is a history of abuse or where abuse seems imminent; and, where a party is threatening to do something rash with family property.

When litigation is provoked by emotions arising from the end of the relationship and isn't really necessary, then you can run into some serious and expensive problems:

*One or both people will adopt an entrenched and unreasonable position about things like the children and other family issues, sometimes a position that they would never have considered taking. Sometimes positions are adopted out of spite or vindictiveness.
*The emotional tension will worsen, particularly when you see things you thought were long buried in the past put into an affidavit. There will be backstabbing, accusations, and wounded feelings.
*There is an increased risk of the children being used to goad the other parent, although sometimes unintentionally.
*There is an increased risk of the alienation or estrangement of a child from a parent, and the permanent impairment of the child's relationship with that parent.
*There will be many interim applications and the litigation may not be settled even with a trial. In circumstances like these, the litigation many never truly end, especially when there are children involved.
*The litigation will cost an enormous amount of money, and you risk losing the equity in the family assets to court fees and legal fees.
*At the end of the day, you risk being permanently unable to communicate effectively with your former partner. This can be a serious problem when children are involved.

As a result of all of this, it can be critical to get a grip on your emotions right out of the starting gate. While all of these emotions are common, natural, and entirely understandable, failing to recognize and manage them can lead to disastrous short- and long-term consequences to your emotional well-being, your relationship with your children, your children's emotional well-being, and your financial situation. If you are having trouble managing your feelings and you have children, see a counsellor as soon as possible.

===Parenting after separation===

When a couple have children, they must accept that they will remain a permanent part of each other's lives, whether they like it or not. A couple may no longer be partners, but they will always be parents. The parental relationship does not end with the romantic relationship.

It is impossible to emphasize enough how important it is to always put the children first. This may sound a bit trite, but putting the children ahead of yourself can be an extremely challenging task when you are also trying to cope with the intense emotions involved in separation. It can be tremendously difficult to refrain from badmouthing your former partner to the children, "forgetting" to drop them off on time, and using them as a weapon.

The [http://www.justicebc.ca/en/fam/help/pas/index.html Parenting After Separation program] is available throughout British Columbia. In my view, all couples with children can benefit from this program, no matter how well or poorly you think you and your former partner get along.

The Parenting After Separation (PAS) program can offer important advice about talking to your children about the separation, talking about your former partner with the children, and talking with your former partner in ways that avoid hurting and wounding and are focused on the children.

Information about parenting after separation, including contact information for the different agencies that offer the PAS program, is available in the chapter [[Children in Family Law Matters]] within the section [[Parenting After Separation]]. As well, some very good research papers and literature reviews about parenting after separation, the costs of high-conflict separation, and other topics relating to the child's well-being and outcomes following separation can be found at the [http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/tool-util/topic-theme/index.html website of the Department of Justice]. These papers are of a uniformly high quality and are well worth the read.

===A few final notes===

I am not a psychologist, a psychiatrist or a counsellor. As a result, this section should be read with a grain of salt as it is based on my observations of my clients' experiences and a healthy dose of common sense. For the same reason, this section should not be used as an authority for the propositions it sets out.

Finally, there are a ton of resources available to help you cope with the separation process and keep the emotionally harmful aspects of the process away from your children. In addition to public programs, many counsellors specialize in helping people work through the emotional turmoil that often follows the end of a long-term relationship.

Since counsellors are unregulated, anyone can hang a shingle saying that they offer counselling services. What you should be looking for are people with the designation of Registered Clinical Counsellor (RCC), Certified Canadian Counsellor (CCC) or Registered Psychologist (RPsych).

*The website [http://www.counsellingbc.com/ counsellingbc.com] offers a list of subscribing counsellors by area of practice.
*The [http://bc-counsellors.org/ BC Association of Clinical Counsellors] also maintains a referral list of its members.
*The [http://www.bcamft.bc.ca/ohana/website/index.cfm?p=95575656796 BC Association for Marriage and Family Therapy] has a referral list and helpful information about how to choose a counsellor.

==The grieving process==

Many counsellors liken the process of emotionally separating from a long-term relationship to the grieving process that happens when a loved one dies. In general, this process can be expected to take one to two years to complete. Dr. Elizabeth Kubler-Ross, in her book ''[http://www.worldcat.org/title/on-death-and-dying/oclc/4238 On Death and Dying]'', describes a five-stage model of grief, and how grief affects our ability to make decisions in each stage.

*'''Shock and denial:''' "This isn't happening to me!" An initial paralysis at hearing the bad news; trying to avoid the inevitable. People usually avoid making decisions or taking action at this point.
*'''Anger:''' "Why is this happening to me?" A frustrated outpouring of bottled-up emotion. Making decisions at this point is difficult because all one's energy gets put into the emotion rather than problem-solving, and the other partner is usually vilified.
*'''Dialogue and bargaining:''' "I promise I'll be a better person if..." Seeking in vain for a way out; seeking paths that might offer a solution. People generally become more willing to explore alternatives.
*'''Depression and detachment:''' "I just don't care anymore." A final realization of the inevitable. It is hard to make reasonable decisions at this stage because of the sense of resignation.
*'''Acceptance:''' "I'm ready for whatever comes." Finally finding the way forward. Decisions are much easier to make because people have found new purpose, having begun to accept the loss.

Dr. Robert Emery agrees that the Kubler-Ross model applies to separating, but he looks at the grief process in a slightly different way. In his book ''[http://www.worldcat.org/title/renegotiating-family-relationships-divorce-child-custody-and-mediation/oclc/30474579&referer=brief_results Renegotiating Family Relationships]'', Dr. Emery describes the grieving process as a cycle of love, anger, and sadness, which gets repeated in varying degrees of intensity as a person works his or her way through the Kubler-Ross stages, from shock and denial through to acceptance of the end of the relationship.

In his excellent book ''[http://www.worldcat.org/title/truth-about-children-and-divorce-dealing-with-the-emotions-so-you-and-your-children-can-thrive/oclc/53485317&referer=brief_results The Truth about Children and Divorce]'', Dr. Emery says this:

<blockquote>"Over time the intensity of the emotions diminishes and people usually find that the feelings begin to blend. Early on, the grief of divorce is experienced as an intense period of feeling nothing but love, followed by an equally intense period of feeling nothing but anger, followed by an equally intense period of feeling nothing but sadness. ... Over time, however, the intensity of the feelings begins to wane, and the cycles of each emotion begin to blur and run into the other two. This overlapping of emotion results in a realistic, less emotionally painful view of the divorce.</blockquote>
<blockquote>"When the blending does not occur, people get stuck in one emotional cycle or another. Someone who gets stuck on love may deny the reality of the breakup and pine for reconciliation; someone caught up in anger will act out of vindictiveness and a need for revenge; those mired in sadness will assume an exaggerated and unrealistic sense of responsibility for what has occurred."</blockquote>

For most people, the difficult thing is that knowing about the stages of divorce and the grief cycle does precious little to actually solve the problem. You can intellectually know what's going on, but knowing what's going on doesn't mean that the emotions go away; there is no magic light switch that you can flip to turn your emotions off. Knowing about the emotional roller coaster can, however, keep you aware of what is motivating your reactions to your former partner and help you contain your emotions while you are negotiating the fallout from the end of your relationship.

It is important to remember that you and your former partner are probably not going to be at the same stage of the grieving process. One person can come to the conclusion the relationship is over long before separation and reach acceptance, while the other person is still in shock and denial that the relationship has ended. This is another factor that will aggravate feelings between you and your former partner.

Each person's goal at the end of the day is to find acceptance, that moment when you don't recognize your former partner's voice on the telephone right away. As Dr. Emery has observed, the opposite of love isn't hate; it's indifference.

===A warning about allies===

All of us seek allies as we cope with the end of a relationship. It's human nature. Allies may be found in family members, friends, co-workers, or a new boyfriend or girlfriend. While we all appreciate the support that allies can offer, allies can also polarize your position about your former partner, and sometimes encourage you to take an unreasonable and entrenched position when you need to be more flexible.

Allies take sides. That's just what they do. Imagine going to your mom or dad in tears, complaining about your former partner. Your parent's job isn't to say "Well, really Bob is a fine person and a great father, you really should lighten up a little and remember his good qualities." Their job is to comfort you, and that often means saying "Yeah, you're right, I can't believe what a complete asshole Bob is being! Whatever did you see in him anyway?"

You shouldn't stop seeking reassurance and comfort from your allies, but you should try to be alert to the influence allies can have, even though they're not intentionally trying to worsen the issues you and your former partner are dealing with.

===A warning about parenting===

Some people best manage a breakup by walking out the door and never looking back, and doing their grieving alone. This just isn't possible where there is property to manage and divide, and it's especially not possible when a couple have children. You can't change your phone number, you can't stop answering the phone, and you can't refuse to see your former partner if you have children. You are still mom or dad, and you'll always be mom or dad and have a relationship with the other parent until or unless your children predecease you.

As a result, it is even more critical for you to properly manage the roller-coaster emotions of separation when you have children. You may be caught up in a whirlwind of anger and remorse at the present, but you have to think of the long-term effect of any rash behaviour. Do you want to be able to attend your child's graduation ceremony? Do you want to go to your child's wedding? How do you want your child to think of you in five years?

It is enormously difficult, but you simply must keep a button on your emotions while you grieve. Dr. Emery offers these suggestions in ''The Truth about Children and Divorce'':

*First, draw clear boundaries around your relationship with your former partner. Let your partner know what you're prepared to talk to him or her about, what information you're prepared to share, and what if anything you're prepared to do with the children together.
*Second, use those boundaries to form a more business-like relationship with your former partner. The two of you may not be friends, but together you are engaged in the "business" of parenting your children. Keep your emotional distance from your former partner.
*Third, respect these new rules. Don't intrude past those boundaries and keep your discussions focused on parenting. It may be hard not to react when your former partner pushes your buttons, but you're best off following this old saying: don't say anything if you don't have anything nice to say.

===A warning about children===

It can be extremely tempting to rely on your children to comfort you as you go through the grieving process. One word: ''don't''. Whatever else you do, don't do this.

Children will be well aware when something's wrong. They will know when you're upset, when you're withdrawn, and when you're crying. Younger children will react with confusion and possibly fear. Older children who are more emotionally sophisticated will want to comfort you. There's nothing wrong with this either, but you do need to control your emotions.

When a child becomes too involved in soothing a parent, there are two main risks: you may develop an overly adult relationship with the child and burden the child with too much information about what's going on, information that is usually age-inappropriate; or, the child may turn into a caretaker, handling your emotions, picking up the housework that's falling behind, and assuming a parenting role towards any younger children.

According to Dr. Emery, "extreme emotional care taking is developmentally inappropriate and can have long-term consequences on children's mental health." Children who grow up too soon are robbed of their right to be children. In the long-term they have trouble forming meaningful relationships, they may be emotionally distant, and they may be compulsively over-responsible.

==Resolving the issues==

There are a variety of ways to resolve the issues that arise when a relationship ends, the most common of which are negotiation, mediation, and litigation. Collaborative law is sort of a cross between negotiation and mediation.

Litigation is a contest between two parties, at the end of which, following trial, there is a winner and a loser. That's a bit of a gloss on things, but litigation really is adversarial in nature, and if the parties can't come to an agreement between themselves, a trial will be held and a judge will impose a resolution on the parties.

With mediation and negotiation, it's the parties themselves who come up with the resolution of their issues. Mediation in particular is cooperative in nature, and requires both parties to commit themselves to a dialogue aimed at finding a solution. There is no winner and no loser, as mediation and negotiation both demand accommodation, and neither party gets exactly what they want; these processes are about compromise.

Unless there is a pressing and manifest urgency, in my view negotiation and mediation are to be preferred over litigation. While it is absolutely true that in some situations court is the only way out, most people can find compromise no matter how wound up their emotional states happen to be.

In ''The Truth about Children and Divorce'', Dr. Emery describes three general categories of divorcing couples: the angry divorce, the distant divorce, and the cooperative divorce. While these categories are not exactly exhaustive and are drawn from an American legal construct, they are useful in discussing the impact of emotional separation on negotiation, mediation, and litigation.

===The cooperative separation===

Couples engaged in a cooperative separation have usually worked out a lot of their emotions and resolved much of their grief. They recognize their emotions for what they are, and avoid acting out of spite or tearfully reminiscing about the lost relationship. These couples attempt to work things out between themselves, with or without help from lawyers and mediators.

Cooperative separations usually result in a separation agreement or an order that they agree the court should make. Often, what little litigation may occur is limited to simply getting the divorce order.

===The distant separation===

Couples in a distant separation are able to keep their conflict from their children, but are still dealing with feelings of hurt, resentment, anger, and pain. While there is plenty of intense anger, this emotion usually fades to a growing dislike or indifference. These couples have done a lot less emotional work on their feelings, and their recollections of the relationship are characterized by bitterness rather than sadness.

These couples are not friends but know better than to become enemies, perhaps because of the children or past experience with the court system. They deal with each other minimally, without a great deal of warmth or demonstrated anger.

===The angry separation===

This, of course, is the type of separation to be wary of. These separations are also known as "high-conflict" separations. Couples in an angry separation have trouble letting go of the marriage, and feel intense pain and anger. Their emotions are usually raw and neither party has done a great deal to manage their feelings.

These couples have the hardest time dealing with each other and the legal issues between them, as they focus on "fault" and "blame," and are often unable to stop themselves from lashing out hurtfully. Resolving the issues is the most difficult for these couples, and they are the most prone to protracted, ugly litigation.

Couples in an angry separation, particularly those with children, generally need to get professional help in dealing with the emotional fallout from the end of the relationship if they are to avoid court and learn to cope with each other and their feelings in the months and years to come.

Angry separations are the sort that lawyers most often wind up dealing with. The epic battles couples engaged in an angry separation are capable of can barely be described. The legal issues arising from the breakup are rarely concluded within two years, and, when there are children, can run for six or more years! A trial rarely resolves issues between these couples, as they will often keep fighting long afterward about real or imagined changes in their respective circumstances following judgment. These couples are also living proof that money doesn't buy happiness — it buys you litigation, and lots of it.

===Anger===

By now, you will have guessed that the irrational thinking anger triggers can be the most important roadblock to resolving family law issues in a cooperative manner. Anger is an incredibly powerful emotion characterized by Dr. Emery as "the toxic residue of unresolved grief."

Anger also does a lot of very odd things that not many people are aware of. Ignorance of these different functions of anger can slow the grieving process, entrench unreasonable positions, and protract the resolution of the issues flowing from the end of a relationship.

====Anger avoids other emotions====

Anger can be used to divert blame from yourself and avoid feelings of guilt. People experiencing anger as a shield are often avoiding accepting responsibility for, perhaps, an affair or being the one who announced the end of the relationship. It can also stop you from experiencing the other primary emotions in the grieving process, sadness and love.

====Anger prolongs the relationship====

Intense anger can also signal that you are not yet done with the relationship. Conflict can be a way of drawing a former partner closer by getting their attention and maintaining the emotional relationship. Underneath this kind of anger remains love and a continuing attachment to a former partner, as illogical as this sounds.

====Anger hides fear====

The process of separation contains a lot of threats, whether real or imagined. Many of these threats are obvious: the risk of losing an asset, the risk of not being able to have another romantic relationship, the risk of losing one's children. Fear triggers the fight-or-flight response; anger can be a manifestation of the fight response.

====Anger blinds====

Anger can stop you from recognizing positive steps your former partner is taking to resolve issues, and lead you to assume that your partner is acting on false pretenses or on a hidden agenda. This kind of anger breeds suspicion that is often unwarranted.

Anger can also stop you from acknowledging your former partner's good qualities, especially around parenting issues. Avoiding admitting these qualities makes it easier to hold onto an objectively unreasonable position.

====Anger is easy====

For people who are emotionally bottled up, the emotions wrapped up in the grieving process can be very difficult. Both sadness and love can be difficult to acknowledge and deal with, particularly when feeling those emotions is associated with a loss of face. As a result, anger can be the easiest emotion to deal with and less painful to experience.

====The results of anger====

Apart from slowing down the grieving process, anger inevitably delays the resolution of the issues that come from the end of a relationship. An enraged person is not going to be able to negotiate since negotiation involves making concessions; an enraged person is mostly going to want to litigate. People in this state of mind make threats like "I'm going to take you for everything you've got," or "you'll never see the children again." They will also tell their lawyers that "it doesn't matter what it costs or whether I'm likely to lose, it's the principle of the thing!"

Sometimes these threats come true, and the consequences to both parties can be enormous.

*Someone who takes an unreasonable position out of anger will lose, but in carrying out their crusade they risk draining all of the family's assets to fund the litigation.
*Rage can permanently impair a couple's relationship with one another. Where there are no children, this may not be a problem, but where there are children this can be disastrous. You may not give a fig about your former partner, but what memories will your children have of the next five years of their lives?
*People can jump to ridiculous conclusions by expecting the worst from their former partner, leading to conflict after conflict ― and court application after court application. Redness on the buttocks of a toddler becomes evidence of molestation, rather than simple diaper rash.
*Rage can trigger "affidavit wars," in which each person makes inflated claims about the purported evils of the other. Minor events are exaggerated beyond all proportion. The costly "war" is triggered because the other party is put to the burden of addressing each inflated claim. Very rarely is a party able to refrain from making reciprocal claims about the misconduct of the other: "I drink all the time? Actually, I only drink socially but you smoked pot when you were pregnant." What is a judge to make of claims like these?
*Anger can strip you of your ability to see common sense and lead you to adopt positions that are objectively unreasonable and doomed to fail. In the process of failing, however, you can expect to spend a lot of money and further damage the tensions in your relationship with your former partner.

Rage, as Dr. Emery observes, is a symptom of unresolved grief. Whatever the cause, failing to move beyond anger can be poisonous to you, to your former partner, to your children, and to your relationship with your children. Some counselling, whether by yourself or with your former partner, can be critical in moving forward and out of anger.

===Choosing your lawyer===

Your choice of lawyer can play a large part in determining how your separation unfolds. Many lawyers are quite open to mediation and collaborative settlement processes, while a few others see litigation as the only means of resolving a dispute, particularly lawyers who have a reputation as being bulldogs. Other lawyers do not take their duty to respond promptly to correspondence particularly seriously, which will delay things and may result in an unnecessarily large number of interim applications. Still other lawyers see their duty as limited to militantly carrying out their clients' instructions, without supplying a great deal of options or cautions as to the likely effect of those instructions.

The best family law lawyers give their clients a common-sense analysis of their situation, based on probable outcomes and their expert knowledge of the law, and encourage their clients to take positions that are objectively reasonable. These lawyers will usually pursue settlement, both before and after litigation has started, and see litigation as a last resort. They are open to negotiation and mediation and other out-of-court processes, although they may prefer a result-oriented mediation process rather than the lengthier traditional mediation process that also tries to address emotional issues.

While some people, particularly those in angry separations, feel an almost irresistible urge to go out and hire the toughest bulldog around to exact revenge against their former partner, bulldogs rarely see any resolutions other than: a settlement on exactly the unreasonable, extortionate terms their clients want; or, a knock-down drag-'em-out trial. These lawyers cost the most, and you can expect the litigation process to drag out for an ungodly amount of time — with absolutely no guarantee of a better result than what you would have had if you'd taken a different, less antagonistic approach.

Even if you are in an angry separation, step back and take a breath. Remember that even though you may hate your former partner at present, you will have to live with the consequences of hasty litigation and your unreasonable positions well into the future. You might also lose your house to pay your lawyer's fees.

How do you find a lawyer? By reputation. Ask around; talk to friends who have had to deal with family lawyers before; ask for referrals from the other professionals in your life. You can also window shop. You don't have to hire the first lawyer you have a consultation with; go ahead and set up meetings with a bunch of different lawyers. You can find additional information about hiring a lawyer in the chapter [[Introduction to the Legal System for Family Matters]] within the section [[Lawyers & The Law Society]].

You should also know that many lawyers who litigate are also accredited family law mediators. If the lawyer you're speaking to is also a family law mediator, you may want to enquire about the possibility of using his or her services to mediate your dispute before you say much more about your case. If you give the lawyer too much information about your situation, he or she may not be able to assume the impartial role demanded of a mediator.

===Required reading===

*''[http://www.worldcat.org/title/renegotiating-family-relationships-divorce-child-custody-and-mediation/oclc/30474579&referer=brief_results Renegotiating Family Relationships]'', by R.E. Emery
*''[http://www.worldcat.org/title/truth-about-children-and-divorce-dealing-with-the-emotions-so-you-and-your-children-can-thrive/oclc/53485317&referer=brief_results The Truth about Children and Divorce]'', by R.E. Emery (Read this book!)
*''[http://www.worldcat.org/title/rebuilding-when-your-relationship-ends/oclc/5707044&referer=brief_results Rebuilding: When Your Relationship Ends]'', by B. Fisher and R.E. Alberti
*''[http://www.worldcat.org/title/healing-hearts-helping-children-and-adults-recover-from-divorce/oclc/30739454&referer=brief_results Healing Hearts: Helping Children and Adults Recover from Divorce]'', by E. Hickey and E. Dalton
*''[http://www.worldcat.org/title/helping-your-kids-cope-with-divorce-the-sandcastles-way/oclc/37300625&referer=brief_results Helping your Kids Cope with Divorce the Sandcastles Way]'', by M.G. Neuman
*''[http://www.worldcat.org/title/joint-custody-with-a-jerk-raising-a-child-with-an-uncooperative-ex-a-hands-on-practical-guide-to-communicating-with-a-difficult-ex-spouse/oclc/682894488&referer=brief_results Joint Custody with a Jerk: Raising your Child with an Uncooperative Ex]'', by J.A. Ross



==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''

===Links===

* [http://clicklaw.bc.ca/resource/1640 Legal Services Society’s Family Law Website: Separation]
* [http://www.justice.gc.ca/eng/pi/fcy-fea/index.html Department of Justice Website: Supporting families experiencing separation and divorce]
* [http://www.counsellingbc.com BC Counsellors by Practice Area]
* [http://bc-counsellors.org/ BC Association of Clinical Counsellors]
* [http://www.bcamft.bc.ca/ohana/website/index.cfm?p=95575656796 BC Association for Marriage and Family Therapy]

{{REVIEWED | reviewer = [[JP Boyd]], March 24, 2013}}

{{JP Boyd on Family Law Navbox|type=chapters}}

[[Category:Marriage, Separation & Divorce]]
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