Divorce and the Law on Getting Divorced: Difference between revisions

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{{JP Boyd on Family Law TOC|expanded = separation}}{{JPBOFL Editor Badge
{{JP Boyd on Family Law TOC|expanded = separation}}
|ChapterEditors = [[Vanessa Van Sickle]]
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| resourcetype = more information on
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| link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/divorce.php Divorce]
| link = [https://family.legalaid.bc.ca/separation-divorce/getting-a-divorce Getting a divorce]
}}
}}Divorce is the legal termination of a marriage by an order of the court. Without a divorce order, a couple will remain married to each other, no matter how long they've been separated from one another, until one of the spouses dies.
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.
 
Although a divorce order represents the formal conclusion of a marriage, the legal consequences of the marriage will continue where children are involved or one spouse is financially dependent on the other. The fact that a couple are divorced doesn't wrap up issues about how children are cared for, or about the payment of child support or spousal support.
 
This section provides an overview of the reasons why the court will make a divorce order, and discusses the nature of divorce orders and the effect of foreign divorce orders in Canada. It also talks about 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]] in the section [[Married Spouses and the Law on Marriage]].
 
==Introduction==
 
Valid marriages end in only two ways, death or divorce. In fact, for thousands of years, marriages in Western society could only end by death. Marriage was considered to be an irreversible, life-long commitment, whether your spouse cheated on you, beat you or gambled away your inheritance. Although the first law allowing English courts to make divorce orders was passed in 1857 — followed by Canada's first ''Divorce Act'' more than a century later, in 1968 — it took an awfully long time for Western society to shake the view that the end of a marriage was sinful and something to be ashamed of. However, the 50-year divorce rate in Canada is presently about 40% and has hovered around that mark for the last 10 or 15 years. Plainly, divorce is something we've gotten used to.
 
Today, most Canadians see divorce as a normal life event, an event that most but not all people go through and an event that prudent people even anticipate and plan for. More Canadians are married and divorced now than ever before in Canadian history, and, likewise, more Canadians have divorced and remarried now than ever before. Once upon a time, blended families were bizarre and unusual — and wasn't that the whole premise of ''The Brady Bunch''? — but today, blended families are commonplace.
 
To get divorced, one spouse has to sue the other for a divorce order. You can't just agree to it. And to get a court order, you must start a court proceeding, just as if you were suing someone after a car crash, suing your employer for firing you, or suing your neighbour for building a fence on your side of the property line. The court you must start your proceeding in is the [https://www.bccourts.ca/supreme_court/ Supreme Court], as the [https://www.provincialcourt.bc.ca Provincial Court] doesn't have the jurisdiction to make orders under the ''[[Divorce Act]]''.
 
===Basic requirements to get divorced===
 
If you want to get divorced in British Columbia, you must be able to satisfy three conditions.
*'''You must be legally married.''' To prove you were legally married, you'll need to provide a marriage certificate issued in the country where you were married. (If your marriage was valid in the place you got married, it counts as a legal marriage in British Columbia.) If you can't get a marriage certificate, you'll need to find witnesses who saw you get married. These witnesses will need to say that they saw you get married.
*'''You or your spouse must live in British Columbia, and have lived here for at least a year.''' The one exception to this rule is if you were married in British Columbia but you live somewhere that won't let you get divorced, which might be the case if you married someone of the same gender but live in a country that doesn't recognize same-sex marriage.
*'''You must prove that your marriage has broken down.''' You can prove this by showing that you have been separated from your spouse for a year, that your spouse abused you, or that your spouse had sex with someone else.
 
===Marriage breakdown===
 
Under the federal ''[[Divorce Act]]'', there is only one reason why you can apply for a divorce order: your marriage has broken down. Under section 8(2) of the act, there are three ways to prove that your marriage has broken down:
 
#you and your spouse have lived separate and apart for at least one year,
#your spouse has committed adultery, or
#your spouse has treated you with such physical or mental cruelty that you cannot continue to live together.
 
In Canada, all divorces proceed on a "no-fault" basis, regardless of the ground of marriage breakdown relied upon. ''No-fault'', in this context, means that the reasons for marriage breakdown have nothing at all to do with how the court deals with issues like parenting children and paying support. No matter how upset you are by your spouse's behaviour, their behaviour will have no impact on how the court resolves the legal issues resulting from your separation.
 
Most divorces — almost all of them, in fact — are based on separation. The only "advantage" of claiming a divorce based on cruelty or adultery is that your divorce order is available relatively quickly — you needn't wait to be separated for a full year before you can ask for the order. However, the downside of divorces based on cruelty or adultery is that you have to prove that the cruelty or adultery occurred. As you can imagine, not all that many people are prepared to admit that they committed adultery or abused their spouse, and, as a result, divorces based on cruelty or adultery rarely proceed smoothly. In fact, where a court proceeding has dragged on long enough that a year or more has passed before the case finally comes to court, many judges will refuse to hear evidence of cruelty or adultery and will grant the divorce instead on the basis of 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 separation can pass while you are both living under the same roof; however, you must behave as if your marriage has come to an end. That usually means stopping sleeping together, stopping doing chores for each other, stopping going out together and so on.


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 ''[[Divorce Act]]'' says that separated spouses can attempt to reconcile and resume living together for up to 90 days without stopping the clock on separation as a reason for a divorce order. If they have lived together for more than 90 days since the first separation, the one-year clock will start again at the end of the last period in which they lived together as married spouses.


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]].
====Adultery====


==The grounds for divorce==
A spouse who is claiming that the other spouse is guilty of adultery must prove that the adultery occurred. The court must also be satisfied that the person asking for the divorce order hasn't ''condoned'' the adultery or ''connived'' to cause the adultery. If the court is not satisfied, it will not make the divorce order.


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:
Proof of adultery normally consists of an affidavit from either your spouse or the person with whom your spouse had sex, admitting to the adultery. You cannot ask for a divorce based on your own adultery!


#the intentional separation of the spouses for at least one year;
Many people will have seen the movie ''Intolerable Cruelty'', which puts a lot 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 United States, but it 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 out of a cardboard box. Adultery, while relevant as a reason for marriage breakdown, has no role in the court's determination of those other issues.
#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.
====Cruelty====


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.
A spouse who claims that the other spouse is guilty of cruelty must prove that the cruelty occurred. 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. The court must also be satisfied that the person asking for the divorce order hasn't ''condoned'' the cruelty. If the court is not satisfied, it will not make the divorce order


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.
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.


===Separation===
===Bars to divorce===


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.
Sections 10 and 11 of the ''[[Divorce Act]]'' describe the circumstances when the court may not make a divorce order. Under section 10(1) and (2), the court must be satisfied that there is no possibility that the spouses can reconcile and continue their marriage. Under section 11(1), the court must be satisfied that:


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.
*the spouses have not colluded to get a divorce,
*there has been no connivance and condonation where marriage breakdown is claimed as a result of cruelty or adultery, and
*adequate support is being paid for any children.


===Adultery===
====Reconciliation====


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.
Under section 10(1) of the ''[[Divorce Act]]'', the court must be satisfied that "there is no possibility of the reconciliation of the spouses" before it hears any evidence in support of a divorce claim. Under section 10(2), if the court thinks that reconciliation is a possibility, it must "adjourn the proceeding to afford the spouses an opportunity to achieve a reconciliation."


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.
====Collusion, connivance and condonation====


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.
Under section 11 of the ''[[Divorce Act]]'', if the court finds that there has been ''collusion'', ''connivance'' or ''condonation'' in an application for a divorce order, the court must not make the order.  


===Cruelty===
"Condonation" means ''forgiveness''. If a spouse's adultery or cruelty has been ''condoned'' by the spouse asking for the divorce, the bad behaviour has been forgiven. If the bad behaviour has been forgiven, then the marriage hasn't broken down. If the marriage hasn't broken down, there's no ground on which the court can make a divorce order.


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.
"Collusion" and "connivance" are both attempts to cheat the court. ''Collusion'' means that the spouses have worked together to fabricate the reason for marriage breakdown. This might mean, for example, that the spouses agreed that one of them would have sex with someone else in order to claim adultery as the reason for marriage breakdown, or that the spouses agreed to lie about the date of their separation. ''Connivance'' means to create the reason for marriage breakdown. For example, if a spouse arranges for someone else to seduce their spouse in order to claim their spouse's adultery as a ground of divorce.  


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.
The point of these rules is to ensure that spouses are not trying to cheat the court to get a quick divorce.


===Conspiracy, connivance and condonation===
====Inadequate child support====


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.
Section 11 of the ''[[Divorce Act]]'' also requires the court to be satisfied that "reasonable arrangements" have been made for the support of any 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 usually have to show 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 $12,000 per year is zero.)


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.
Here are some cases that show how tricky this can get.


''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.
<blockquote>In ''[https://canlii.ca/t/gg05v Kaur v Nagra]'', a 2015 decision from the Alberta Court of Queen's Bench, the spouses emigrated to Canada while their child remained at home with his grandparents. When the spouses decided to divorce, the court refused the order because they failed to show what "reasonable arrangements" were in place for the support of their child, even though the child was living with neither of them.</blockquote>


===Child support===
<blockquote>In ''[https://canlii.ca/t/g0mt9 Kendo v Kendo]'', a 2013 decision of the Northwest Territories Supreme Court, the court refused to make a divorce order without proof that the spouses had resolved the issue of child support.</blockquote>


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.
<blockquote>In ''[https://canlii.ca/t/g36tp Holzbauer v Holzbauer]'', a 2014 decision from the Alberta Court of Queen's Bench, the court refused to make a divorce order where the parties were relying on an 11-year-old child support order to prove that reasonable arrangements had been made.</blockquote>


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.
<blockquote>In ''[https://canlii.ca/t/g22wn Walsh v Binet]'', a 2013 decision from the Alberta Court of Queen's Bench, a spouse tried to get a divorce along with an order that the other spouse would not be required to pay child support. The court refused both orders as it had no information about the other spouse's income.</blockquote>


==The divorce order==
==The divorce order==


In order to get a divorce order, the court must be satisfied that:
As we've already talked about, in order to get a divorce order, the court must be satisfied that:


*the marriage legally exists,
*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,
*at least one of the parties has been ordinarily resident in British Columbia for at least one year before the court proceeding began, and
*the ground on which marriage breakdown in claimed has been proven, and,
*the ground on which marriage breakdown is claimed has been proven.
*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.
It must also be satisfied that there is no possibility of reconciliation, that adequate child support is being paid if there are children, and that there has been no collusion, connivance or condonation with respect to the application for the divorce order.
 
It is possible to oppose an application for a divorce order. Practically speaking, however, by the time the application gets before a judge, the other side has usually come to realize that a divorce is inevitable. However, even if the other side continues to object to the divorce order, the court will make the order over that spouse's objections if marriage breakdown has been proven.


===Corollary relief===
===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.
An order for divorce can be made on its own or together with ''corollary relief''. "Corollary relief" means orders made under the ''[[Divorce Act]]'' other than divorce; namely, orders about parenting 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.
Divorce orders are usually made after all of the corollary claims, if any, have been dealt with, either as a result of a trial or the spouses' agreement. The court is usually very reluctant to make a divorce order until ''all'' of the other legal issues have been resolved.


===The appeal period===
===Effective date===


Orders for divorce usually contain a term that "this order shall not take effect until the 31st day after its pronouncement." This 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.
Orders for divorce usually contain a term that says "this order shall not take effect until the 31st day after its pronouncement." This is to allow the 30-day 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 <span class="noglossary">case</span>, you should advise the court of the need for haste, and a waiver of appeal will have to be filed.
It is possible to abridge the appeal period, if the divorce must take effect sooner for some urgent reason such as remarriage. If this is the <span class="noglossary">case</span>, you should advise the court of the need for haste, and a waiver of appeal will have to be filed.


===Certificate of divorce===
===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.
Once the appeal period has expired, either person may ask the court registry staff for a Certificate of Divorce. The certificate merely confirms that the spouses are divorced and doesn't say anything else about the reasons for the divorce or the other orders that were made along with the divorce order. It is, strictly speaking, not necessary to get a Certificate of Divorce as the divorce order itself is more than sufficient proof of divorce. Nevertheless, people often want this certificate:
 
*to obtain a sense of closure,
*because they expect to marry within the next couple of years, or
*to have proof 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. For an overview of this process, go to the Helpful Guides & Common Questions section of this resource and read [[How Do I Get my Certificate of Divorce%3F]]. It's located under ''Marriage, Separation and Divorce''.


==Foreign divorce orders==
==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.
Section 22(1) of the ''[[Divorce Act]]'' deals with the effect in Canada of divorces obtained elsewhere. In a nutshell, if a divorce was properly granted by a 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.
Of course, there is a small catch. Either spouse must have been "habitually resident" in the country in which the divorce order was made 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 under Sri Lankan law. As long as you had lived in Sri Lanka for more than one year before you started your application, a divorce there will be valid here.


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 and Debt in Family Law Matters]] within the section [[Dividing property and debt under the Family Law Act]].
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 when there are unresolved issues about the division of property and pensions. You can find more information about the property entitlements of married spouses in the chapter [[Property and Debt in Family Law Matters|Property and Debt]].


==The do-it-yourself divorce==
==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.
The only way to get divorced is to get a divorce order, and the only way to get a court order is to start a court proceeding. You must sue your spouse if you want to get divorced, even if you're still quite friendly with each other and even if you agree on everything. The do-it-yourself process, called the ''desk order divorce process'', is a special process designed to let you start a court proceeding and get a divorce order without ever having to appear in court. The order you ask for can even deal with issues other than divorce, and can include orders about parenting children, child support, spousal support and the division of property and debt.


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.
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 intimidating, 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:
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 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.
#when you and your spouse have other legal issues, but those issues 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.
In the first <span class="noglossary">case</span>, a desk order application will be for a divorce alone. In the second <span class="noglossary">case</span>, a desk order application will be an application for a divorce and other orders about things like parenting children, paying support, and dividing property.


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.
Most court proceedings go like this: the claimant files a Notice of Family Claim and serves it on the respondent; and, the respondent then files a Response to Family Claim and sometimes a Counterclaim. If the respondent fails to file a Response to Family Claim within the allowed time, 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].
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].


There are two types of desk order divorce actions:
For a <span class="noglossary">brief</span> summary of this process, go to the Helpful Guides & Common Questions section of this resource and read [[How Do I Get Divorced?]]. It's located under ''Marriage, Separation and Divorce''.
 
===Choosing between the sole application process and the joint application process===
 
There are two types of desk order divorce processes:


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


There are a few important differences between sole applications and joint applications.  
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.  
*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.
*The sole application process takes a little longer because the claimant has to serve the respondent 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 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.
*In a joint application, both spouses must sign the Notice of Joint Family Claim in Form F1, and both must complete an affidavit for the application for the divorce order.


===The sole divorce application===
===The sole divorce application===


These instructions are for the sole divorce application process.
These <span class="noglossary">instructions</span> are for the sole divorce application process:


'''Step One'''
'''Step One'''


<blockquote>Prepare your Notice of Family Claim. Make three copies of the original.</blockquote>
<blockquote>Prepare your Notice of Family Claim in Form F3. Make three copies of the original.</blockquote>


'''Step Two'''
'''Step Two'''
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'''Step Three'''
'''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>
<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 your Notice of Family Claim on your ex, and will use the photograph and the remaining copy of your Notice of Family Claim in their Affidavit of Personal Service to prove that your ex was served.</blockquote>


'''Step Four'''
'''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>
<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 is filed?" at the end of this section.</blockquote>


'''Step Five'''
'''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>
<blockquote>Assuming your ex hasn't filed a Response to Family Claim or Counterclaim, prepare a 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'''
'''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>
<blockquote>Go to the court registry where you filed your Notice of Family Claim, 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'''
'''Step Seven'''
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'''Step Eight'''
'''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>
<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:
Once you've got your entered divorce order and 31 days have passed from the date the order was made, 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'''
'''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>
<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'''
'''Step Ten'''
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===The joint divorce application===
===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.
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. The main differences that set the joint application apart from the sole application process are:


These are the main differences between the joint application process and the sole application process:
*a special form, called the [[Form F1 Notice of Joint Family Claim | Notice of Joint Family Claim]], is required,
*both parties sign the Notice of Joint Family Claim,
*the Notice of Joint Family Claim doesn't need to be served on anyone, and there's 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, and
*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.


*The parties are known as claimant 1 and claimant 2.
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 is filed?" at the end of this section.
*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.
The Ministry of Justice introduced an [https://justice.gov.bc.ca/divorce online application] to help those without children apply for joint divorce.  


These instructions are for the joint divorce application process.
These <span class="noglossary">instructions</span> are for the joint divorce application process:


'''Step One'''
'''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>
<blockquote>Prepare a Notice of Joint 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'''
'''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>
<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 Notice of Joint Family Claim, keep the original, and give you back the two duplicates. Your Marriage Certificate will go into the court file.</blockquote>


'''Step Three'''
'''Step Three'''
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'''Step Five'''
'''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>
<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:
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:
Line 210: Line 258:
'''Step Six'''
'''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>
<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'''
'''Step Seven'''
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<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>
<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 forms of 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.
With the exception of the special form, Notice of Joint 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===
===Help with your divorce===


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.
Understandably, you want to spend as little money as possible to get your divorce. However, the forms are complicated and sometimes you'll need help. There are a few free services around that you might be able to use, but you can also pay lawyers or legal service companies to do your divorce for you.


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 will be available at your local courthouse library.
====Free services====


===Services that are not free===
The BC Ministry of Attorney General has an [https://justice.gov.bc.ca/divorce online do-it-yourself joint divorce application] process, called the Online Divorce Assistant. This process can only be used when all orders being sought are by consent, which is also known as an ''uncontested divorce''.


====Lawyers====
For a little more help, [https://accessprobono.ca/ Access Pro Bono] offers free meetings to those who qualify based on household income (households with 1-3 people earning less than $60,000 in total income, or with 4 or more people earning less than $84,000 in total income may qualify). You may be able to meet with a lawyer who can <span class="noglossary">review</span> your forms with you before you file them in court. Although the lawyers available through this program are not likely to prepare your documents, they may give them a check to make sure that the registry will accept them. Access Pro Bono also operates the Everyone Legal Clinic, which is not free, but assures much more affordability. The clinic advertises ''uncontested divorces'' as [https://everyonelegal.ca/services-for-everyone/family one of their services].


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.
The [http://www.cle.bc.ca/ British Columbia Continuing Legal Education Society] has published an excellent guide to the desk order divorce process called ''Desk Order Divorce—An Annotated Guide'', which has samples of the different clauses you may need to complete your court forms. This book is available at your local courthouse library.


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.
[https://family.legalaid.bc.ca/separation-divorce/getting-a-divorce Legal Aid BC] also has an excellent online step-by-step guide to the divorce process.


====Commercial services====
====Services that are not free====


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.
You're usually best off if you hire a lawyer to handle your divorce for you, as a 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.


There are a number of commercial services available online that will prepare all of the necessary documents for you, including:
Lawyers, however, come at a cost. You should expect that you will be charged fees of anywhere between $1,500 and $3,500 for your divorce, plus the lawyer's out-of-pocket expenses for things like court fees and photocopying.


*http://www.divorceoptions.ca
There are also a number of commercial services available online that will prepare the necessary documents for you, likely at a rate lower than what a lawyer would charge. Mentioned above, the Everyone Legal Clinic is worth looking into since it is associated with a trustworthy organization (Access Pro Bono), and offers limited services (such as uncontested divorces) to anyone at an affordable rate.
*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!
Many online providers 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?===
===What happens if a response or counterclaim is 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:
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,
*in a '''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 a '''joint application''' one of the claimants 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.
In either situation, the divorce claim will cease to qualify as an ''undefended family law case'', as defined by the [http://canlii.ca/t/8mcr Supreme Court Family Rules], and the court proceedings will be kicked out of the desk order process. The court proceeding will continue like any other contested family law case, with the possibility of a resolution at trial if settlement cannot be reached before then.
 
<!---HIDDEN
==Further Reading in this Chapter==
 
* <span style="color: red;">bulleted list of other pages in this chapter, linked</span>
END HIDDEN--->


==Resources and links==
==Resources and links==
Line 263: Line 303:
===Legislation===
===Legislation===


* ''[[Family Law Act]]''
* ''[https://canlii.ca/t/8q3k Family Law Act]''
* ''[[Divorce Act]]''
* ''[https://canlii.ca/t/551f9 Divorce Act]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* [https://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/80mh Federal Child Support Guidelines]''
* [https://canlii.ca/t/80mh Child Support Guidelines]


===Links===
===Links===


* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/divorce.php Legal Services Society’s Family Law Website: Divorce]
*[https://justice.gov.bc.ca/divorce Ministry of Attorney General's Online Divorce Assistant]  
* Online Divorce Services:
*[https://www.bccourts.ca/supreme_court/ Supreme Court of British Columbia website]
**[http://www.divorceoptions.ca DivorceOptions.ca]
*[https://www.provincialcourt.bc.ca/ Provincial Court of British Columbia website]
**[http://www.untietheknot.ca Untie The Knot Divorce Service]
*[https://bc.familieschange.ca/en Families Change] website from the Justice Education Society of BC and BC Ministry of Attorney General
**[http://www.britishcolumbiadivorce.ca Canadian Divorce Online]
*[https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help Support and Resources for Dealing with Separation and Divorce] website from the BC Ministry of Attorney General
*[https://everyonelegal.ca/services-for-everyone/family Everyone Legal Clinic]
===Resources===


*[https://family.legalaid.bc.ca/separation-divorce/getting-a-divorce Legal Aid BC's Family Law website's information page "Getting a divorce"]
*[https://family.legalaid.bc.ca/resources/living-together-or-living-apart ''Living Together or Living Apart'']
*[https://www.justice.gc.ca/eng/fl-df/fact4-fiches4.html Divorce Fact Sheet] from the Department of Justice
*[https://dialalaw.peopleslawschool.ca/separation-agreements/ Separation and Separation Agreements] from Dial-a-Law by the People's Law School
*[https://dialalaw.peopleslawschool.ca/separation-deciding-who-will-move-out/ Deciding Who Will Move Out When You Separate] from Dial-a-Law by the People's Law School
*[https://family.legalaid.bc.ca/resources/coping-separation-handbook ''Coping with Separation Handbook''] from Legal Aid BC
* [https://family.legalaid.bc.ca/separation-divorce/going-through-separation Going Through Separation] from Legal Aid BC
*[https://bit.ly/3AoGrfy "Ending Relationships" video] from John-Paul Boyd, KC
{{REVIEWED | reviewer = [[JP Boyd]], 26 March 2023}}


{{JP Boyd on Family Law Navbox|type=chapters}}
{{JP Boyd on Family Law Navbox|type=chapters}}
 
{{Creative Commons for JP Boyd}}
[[Category:Marriage, Separation & Divorce]]
[[Category:Marriage, Separation & Divorce]]
[[Category:JP Boyd on Family Law]]

Latest revision as of 21:36, 8 August 2024

Divorce is the legal termination of a marriage by an order of the court. Without a divorce order, a couple will remain married to each other, no matter how long they've been separated from one another, until one of the spouses dies.

Although a divorce order represents the formal conclusion of a marriage, the legal consequences of the marriage will continue where children are involved or one spouse is financially dependent on the other. The fact that a couple are divorced doesn't wrap up issues about how children are cared for, or about the payment of child support or spousal support.

This section provides an overview of the reasons why the court will make a divorce order, and discusses the nature of divorce orders and the effect of foreign divorce orders in Canada. It also talks about 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 in the section Married Spouses and the Law on Marriage.

Introduction

Valid marriages end in only two ways, death or divorce. In fact, for thousands of years, marriages in Western society could only end by death. Marriage was considered to be an irreversible, life-long commitment, whether your spouse cheated on you, beat you or gambled away your inheritance. Although the first law allowing English courts to make divorce orders was passed in 1857 — followed by Canada's first Divorce Act more than a century later, in 1968 — it took an awfully long time for Western society to shake the view that the end of a marriage was sinful and something to be ashamed of. However, the 50-year divorce rate in Canada is presently about 40% and has hovered around that mark for the last 10 or 15 years. Plainly, divorce is something we've gotten used to.

Today, most Canadians see divorce as a normal life event, an event that most but not all people go through and an event that prudent people even anticipate and plan for. More Canadians are married and divorced now than ever before in Canadian history, and, likewise, more Canadians have divorced and remarried now than ever before. Once upon a time, blended families were bizarre and unusual — and wasn't that the whole premise of The Brady Bunch? — but today, blended families are commonplace.

To get divorced, one spouse has to sue the other for a divorce order. You can't just agree to it. And to get a court order, you must start a court proceeding, just as if you were suing someone after a car crash, suing your employer for firing you, or suing your neighbour for building a fence on your side of the property line. The court you must start your proceeding in is the Supreme Court, as the Provincial Court doesn't have the jurisdiction to make orders under the Divorce Act.

Basic requirements to get divorced

If you want to get divorced in British Columbia, you must be able to satisfy three conditions.

  • You must be legally married. To prove you were legally married, you'll need to provide a marriage certificate issued in the country where you were married. (If your marriage was valid in the place you got married, it counts as a legal marriage in British Columbia.) If you can't get a marriage certificate, you'll need to find witnesses who saw you get married. These witnesses will need to say that they saw you get married.
  • You or your spouse must live in British Columbia, and have lived here for at least a year. The one exception to this rule is if you were married in British Columbia but you live somewhere that won't let you get divorced, which might be the case if you married someone of the same gender but live in a country that doesn't recognize same-sex marriage.
  • You must prove that your marriage has broken down. You can prove this by showing that you have been separated from your spouse for a year, that your spouse abused you, or that your spouse had sex with someone else.

Marriage breakdown

Under the federal Divorce Act, there is only one reason why you can apply for a divorce order: your marriage has broken down. Under section 8(2) of the act, there are three ways to prove that your marriage has broken down:

  1. you and your spouse have lived separate and apart for at least one year,
  2. your spouse has committed adultery, or
  3. your spouse has treated you with such physical or mental cruelty that you cannot continue to live together.

In Canada, all divorces proceed on a "no-fault" basis, regardless of the ground of marriage breakdown relied upon. No-fault, in this context, means that the reasons for marriage breakdown have nothing at all to do with how the court deals with issues like parenting children and paying support. No matter how upset you are by your spouse's behaviour, their behaviour will have no impact on how the court resolves the legal issues resulting from your separation.

Most divorces — almost all of them, in fact — are based on separation. The only "advantage" of claiming a divorce based on cruelty or adultery is that your divorce order is available relatively quickly — you needn't wait to be separated for a full year before you can ask for the order. However, the downside of divorces based on cruelty or adultery is that you have to prove that the cruelty or adultery occurred. As you can imagine, not all that many people are prepared to admit that they committed adultery or abused their spouse, and, as a result, divorces based on cruelty or adultery rarely proceed smoothly. In fact, where a court proceeding has dragged on long enough that a year or more has passed before the case finally comes to court, many judges will refuse to hear evidence of cruelty or adultery and will grant the divorce instead on the basis of 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 separation can pass while you are both living under the same roof; however, you must behave as if your marriage has come to an end. That usually means stopping sleeping together, stopping doing chores for each other, stopping going out together and so on.

The Divorce Act says that separated spouses can attempt to reconcile and resume living together for up to 90 days without stopping the clock on separation as a reason for a divorce order. If they have lived together for more than 90 days since the first separation, the one-year clock will start again at the end of the last period in which they lived together as married spouses.

Adultery

A spouse who is claiming that the other spouse is guilty of adultery must prove that the adultery occurred. The court must also be satisfied that the person asking for the divorce order hasn't condoned the adultery or connived to cause the adultery. If the court is not satisfied, it will not make the divorce order.

Proof of adultery normally consists of an affidavit from either your spouse or the person with whom your spouse had sex, admitting to the adultery. You cannot ask for a divorce based on your own adultery!

Many people will have seen the movie Intolerable Cruelty, which puts a lot 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 United States, but it 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 out of a cardboard box. Adultery, while relevant as a reason for marriage breakdown, has no role in the court's determination of those other issues.

Cruelty

A spouse who claims that the other spouse is guilty of cruelty must prove that the cruelty occurred. 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. The court must also be satisfied that the person asking for the divorce order hasn't condoned the cruelty. If the court is not satisfied, it will not make the divorce order

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.

Bars to divorce

Sections 10 and 11 of the Divorce Act describe the circumstances when the court may not make a divorce order. Under section 10(1) and (2), the court must be satisfied that there is no possibility that the spouses can reconcile and continue their marriage. Under section 11(1), the court must be satisfied that:

  • the spouses have not colluded to get a divorce,
  • there has been no connivance and condonation where marriage breakdown is claimed as a result of cruelty or adultery, and
  • adequate support is being paid for any children.

Reconciliation

Under section 10(1) of the Divorce Act, the court must be satisfied that "there is no possibility of the reconciliation of the spouses" before it hears any evidence in support of a divorce claim. Under section 10(2), if the court thinks that reconciliation is a possibility, it must "adjourn the proceeding to afford the spouses an opportunity to achieve a reconciliation."

Collusion, connivance and condonation

Under section 11 of the Divorce Act, if the court finds that there has been collusion, connivance or condonation in an application for a divorce order, the court must not make the order.

"Condonation" means forgiveness. If a spouse's adultery or cruelty has been condoned by the spouse asking for the divorce, the bad behaviour has been forgiven. If the bad behaviour has been forgiven, then the marriage hasn't broken down. If the marriage hasn't broken down, there's no ground on which the court can make a divorce order.

"Collusion" and "connivance" are both attempts to cheat the court. Collusion means that the spouses have worked together to fabricate the reason for marriage breakdown. This might mean, for example, that the spouses agreed that one of them would have sex with someone else in order to claim adultery as the reason for marriage breakdown, or that the spouses agreed to lie about the date of their separation. Connivance means to create the reason for marriage breakdown. For example, if a spouse arranges for someone else to seduce their spouse in order to claim their spouse's adultery as a ground of divorce.

The point of these rules is to ensure that spouses are not trying to cheat the court to get a quick divorce.

Inadequate child support

Section 11 of the Divorce Act also requires the court to be satisfied that "reasonable arrangements" have been made for the support of any 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 usually have to show 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 $12,000 per year is zero.)

Here are some cases that show how tricky this can get.

In Kaur v Nagra, a 2015 decision from the Alberta Court of Queen's Bench, the spouses emigrated to Canada while their child remained at home with his grandparents. When the spouses decided to divorce, the court refused the order because they failed to show what "reasonable arrangements" were in place for the support of their child, even though the child was living with neither of them.

In Kendo v Kendo, a 2013 decision of the Northwest Territories Supreme Court, the court refused to make a divorce order without proof that the spouses had resolved the issue of child support.

In Holzbauer v Holzbauer, a 2014 decision from the Alberta Court of Queen's Bench, the court refused to make a divorce order where the parties were relying on an 11-year-old child support order to prove that reasonable arrangements had been made.

In Walsh v Binet, a 2013 decision from the Alberta Court of Queen's Bench, a spouse tried to get a divorce along with an order that the other spouse would not be required to pay child support. The court refused both orders as it had no information about the other spouse's income.

The divorce order

As we've already talked about, 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 court proceeding began, and
  • the ground on which marriage breakdown is claimed has been proven.

It must also be satisfied that there is no possibility of reconciliation, that adequate child support is being paid if there are children, and that there has been no collusion, connivance or condonation with respect to the application for the divorce order.

It is possible to oppose an application for a divorce order. Practically speaking, however, by the time the application gets before a judge, the other side has usually come to realize that a divorce is inevitable. However, even if the other side continues to object to the divorce order, the court will make the order over that spouse's objections if marriage breakdown has been proven.

Corollary relief

An order for divorce can be made on its own or together with corollary relief. "Corollary relief" means orders made under the Divorce Act other than divorce; namely, orders about parenting children, child support and spousal support.

Divorce orders are usually made after all of the corollary claims, if any, have been dealt with, either as a result of a trial or the spouses' agreement. The court is usually very reluctant to make a divorce order until all of the other legal issues have been resolved.

Effective date

Orders for divorce usually contain a term that says "this order shall not take effect until the 31st day after its pronouncement." This is to allow the 30-day 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 the 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 person may ask the court registry staff for a Certificate of Divorce. The certificate merely confirms that the spouses are divorced and doesn't say anything else about the reasons for the divorce or the other orders that were made along with the divorce order. It is, strictly speaking, not necessary to get a Certificate of Divorce as the divorce order itself is more than sufficient proof of divorce. Nevertheless, people often want this certificate:

  • to obtain a sense of closure,
  • because they expect to marry within the next couple of years, or
  • to have proof 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. For an overview of this process, go to the Helpful Guides & Common Questions section of this resource and read How Do I Get my Certificate of Divorce?. It's located under Marriage, Separation and Divorce.

Foreign divorce orders

Section 22(1) of the Divorce Act deals with the effect in Canada of divorces obtained elsewhere. In a nutshell, if a divorce was properly granted by a 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 "habitually resident" in the country in which the divorce order was made 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 under Sri Lankan law. As long as you had lived in Sri Lanka for more than one year before you started your application, a divorce there will be valid here.

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 when there are unresolved issues about the division of property and pensions. You can find more information about the property entitlements of married spouses in the chapter Property and Debt.

The do-it-yourself divorce

The only way to get divorced is to get a divorce order, and the only way to get a court order is to start a court proceeding. You must sue your spouse if you want to get divorced, even if you're still quite friendly with each other and even if you agree on everything. The do-it-yourself process, called the desk order divorce process, is a special process designed to let you start a court proceeding and get a divorce order without ever having to appear in court. The order you ask for can even deal with issues other than divorce, and can include orders about parenting children, child support, spousal support and the division of property and debt.

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 intimidating, 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:

  1. when the only issue between you and your spouse is getting a divorce, or
  2. when you and your spouse have other legal issues, but those issues 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 and other orders about things like parenting children, paying support, and dividing property.

Most court proceedings go like this: the claimant files a Notice of Family Claim and serves it on the respondent; and, the respondent then files a Response to Family Claim and sometimes a Counterclaim. If the respondent fails to file a Response to Family Claim within the allowed time, 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 Supreme Court Family Rules.

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

Choosing between the sole application process and the joint application process

There are two types of desk order divorce processes:

  1. the sole application process, in which only one spouse is responsible for ushering the process through, and
  2. the joint application process, in which both 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.
  • The sole application process takes a little longer because the claimant has to serve the respondent 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 Joint Family Claim in Form F1, and both must complete an affidavit for the application for the divorce order.

The sole divorce application

These instructions are for the sole divorce application process:

Step One

Prepare your Notice of Family Claim in Form F3. Make three copies of the original.

Step Two

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.

Step Three

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 your Notice of Family Claim on your ex, and will use the photograph and the remaining copy of your Notice of Family Claim in their Affidavit of Personal Service to prove that your ex was served.

Step Four

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 is filed?" at the end of this section.

Step Five

Assuming your ex hasn't filed a Response to Family Claim or Counterclaim, prepare a 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.

Step Six

Go to the court registry where you filed your Notice of Family Claim, 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.

Step Seven

Once you've filed your application, wait four weeks.

Step Eight

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.

Once you've got your entered divorce order and 31 days have passed from the date the order was made, 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

Wait 32 days from the date the divorce order was made. (The date will be shown on the first page of the order.)

Step Ten

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.

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. The main differences that set the joint application apart from the sole application process are:

  • a special form, called the Notice of Joint Family Claim, is required,
  • both parties sign the Notice of Joint Family Claim,
  • the Notice of Joint Family Claim doesn't need to be served on anyone, and there's 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, and
  • 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 is filed?" at the end of this section.

The Ministry of Justice introduced an online application to help those without children apply for joint divorce.

These instructions are for the joint divorce application process:

Step One

Prepare a Notice of Joint 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.

Step Two

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 Notice of Joint Family Claim, keep the original, and give you back the two duplicates. Your Marriage Certificate will go into the court file.

Step Three

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

Step Four

Once you've filed your application, wait four weeks.

Step Five

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.

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

Wait 32 days from the date the order was made. (The date will be shown on the first page of the order.)

Step Seven

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.

With the exception of the special form, Notice of Joint 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.

Help with your divorce

Understandably, you want to spend as little money as possible to get your divorce. However, the forms are complicated and sometimes you'll need help. There are a few free services around that you might be able to use, but you can also pay lawyers or legal service companies to do your divorce for you.

Free services

The BC Ministry of Attorney General has an online do-it-yourself joint divorce application process, called the Online Divorce Assistant. This process can only be used when all orders being sought are by consent, which is also known as an uncontested divorce.

For a little more help, Access Pro Bono offers free meetings to those who qualify based on household income (households with 1-3 people earning less than $60,000 in total income, or with 4 or more people earning less than $84,000 in total income may qualify). You may be able to meet with a lawyer who can review your forms with you before you file them in court. Although the lawyers available through this program are not likely to prepare your documents, they may give them a check to make sure that the registry will accept them. Access Pro Bono also operates the Everyone Legal Clinic, which is not free, but assures much more affordability. The clinic advertises uncontested divorces as one of their services.

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

Legal Aid BC also has an excellent online step-by-step guide to the divorce process.

Services that are not free

You're usually best off if you hire a lawyer to handle your divorce for you, as a 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 $1,500 and $3,500 for your divorce, plus the lawyer's out-of-pocket expenses for things like court fees and photocopying.

There are also a number of commercial services available online that will prepare the necessary documents for you, likely at a rate lower than what a lawyer would charge. Mentioned above, the Everyone Legal Clinic is worth looking into since it is associated with a trustworthy organization (Access Pro Bono), and offers limited services (such as uncontested divorces) to anyone at an affordable rate.

Many online providers 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 is 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:

  • in a sole application the respondent files a Response to Family Claim or a Counterclaim, or
  • in a joint application one of the claimants withdraws from the process and files a Response to Family Claim or a Counterclaim.

In either situation, the divorce claim will cease to qualify as an undefended family law case, as defined by the Supreme Court Family Rules, and the court proceedings will be kicked out of the desk order process. The court proceeding will continue like any other contested family law case, with the possibility of a resolution at trial if settlement cannot be reached before then.

Resources and links

Legislation

Links

Resources

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 26 March 2023.


JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.