Responding to Divorce Proceedings

This script will be helpful if your spouse is about to begin divorce proceedings, or if you’ve already been served with divorce papers. In most cases, you’ll want to hire a lawyer to represent you, but this script should give you a general understanding of your situation. Note that you only have a limited time to respond to the divorce papers.

This script will be helpful if your spouse is about to begin divorce proceedings, or if you’ve already been served with divorce papers. In most cases, you’ll want to hire a lawyer to represent you, but this script should give you a general understanding of your situation. Note that you only have a limited time to respond to the divorce papers.

This script only applies to married spouses. Unmarried spouses and other unmarried couples do not need to get a divorce.

What are the court forms used to start a divorce court case?

The document you’ll receive (or have already received) is called a Notice of Family Claim. Your spouse, the person who started the court case, is called the claimant. You are the respondent.

The claimant must arrange for personal service of the Notice of Family Claim. This means that the Notice of Family Claim must be delivered to you in person. If you’re not available to receive the papers or the claimant has difficulty personally serving you, he or she can ask the court to serve you “substitutionally” by, for example, leaving the papers at your last known address, with your close relatives, or in your mailbox.

Make sure you read the Notice of Family Claim carefully. This document states the orders that the claimant wants the court to make. Whether and how you respond to the Notice of Family Claims depends on the orders the claimant is asking for.

Consider consulting a lawyer

Because the claims made in the Notice of Family Claim could significantly affect your rights, you should consider asking a lawyer to review them with you and explain exactly what orders your spouse is asking the court to make.

There are strict time limits to respond

You must respond to the Notice of Family Claim within 30 days of the date you were served by filing a Response to Family Claim in court and serving the filed Response to Family Claim on the claimant by “ordinary service.” It is very important that you do this if you disagree with any of the orders the claimant is asking for. If you don’t respond, the court can make orders without any further notice to you.

Ordinary service means mailing or faxing (or sometimes emailing) a document to the claimant’s Address for Service, which can include a fax number for service and an email address for service. The claimant’s Address for Service will be set out in his or her Notice of Family Claim.

What’s in the Notice of Family Claim?

The Notice of Family Claim gives the court basic information about you and your spouse, and the details of your marriage and separation. The schedules to the Notice of Family Claim describe the orders your spouse is asking the court to make. At a minimum, this will be an order for your divorce, but your spouse can also ask for orders about the parenting of your children, spousal support and child support, the division of family property and family debt and other subjects.

The reasons why your spouse is asking for a divorce will be given

For information on the legal grounds for divorce, refer to script 120 called “Requirements for Divorce and Annulment”. If you don’t dispute the basis upon which your spouse is applying for a divorce, such as a one-year separation, you might not object. On the other hand, if he or she is claiming adultery or cruelty and those claims aren’t true, you might want to contest the court case.

Consider carefully the claims made

The claimant’s “claims” are the orders your spouse wants the court to make. If your spouse is seeking sole custody of the children under the Divorce Act, do you feel that joint custody is better, or should you have sole custody? If property is to be divided, do you want half or more than half of the family property? Is there a reason to apply to share of your spouse’s excluded property? If you dispute any of the claimant’s claims, you must do so in a Response to Family Claim, which is explained a little later. If you wish to make claims of your own, you must do so in a Counterclaim, also explained later on in this script.

What if you don’t agree with what’s being asked for in the Notice of Family Claim?

You should file a Response to Family Claim, which tells the court what claims you agree with and which you oppose. Be aware, however, that filing a Response to Family Claim changes the proceeding from an “uncontested divorce proceeding” which doesn’t require an appearance before a judge to a “contested divorce” that a trial may be necessary to resolve if they can’t be settled beforehand.

What if you want to make your own claims?

If you have claims of your own that you want to make, for example about the parenting of your children, child support, spousal support, the division of property and debt, or another order, you must file a document called a Counterclaim. The Counterclaim states the orders that you want the court to make.

What’s a “judicial case conference”?

You or the claimant can schedule a judicial case conference after you have filed a Response to Family Claim or Counterclaim. A JCC is an informal hearing before a judge or master to talk about the claims each of you have made, see what can be agreed to and talk about how the claims will be resolved. JCCs are held in private and on a “without prejudice” basis. Without prejudice means that each of you can make settlement proposals at the JCC without being held to your proposal later on.

The JCC is an excellent opportunity to tell the judge and the claimant what you really want

Everything you say at a JCC is confidential and cannot be repeated outside the hearing room or used later, so speak your mind and explain what orders you’re looking for and why. The judge won’t make any decisions, however, unless you and your spouse both agree.

When will the divorce be granted?

If the claim for divorce is based on separation, the divorce order can be made any time after the one-year period is over. If the claim is based on cruelty or adultery, the order can be made at any time. (Remember that no matter why the divorce is claimed, the court must be satisfied that adequate arrangements have been made for the financial support of any children before it can make the divorce order.)

Although the divorce order can be made before all of the issues are resolved, the court will usually be reluctant to make a divorce order in advance without a very good reason for doing so.

What is an “interim application”?

It can take a year or more from the time the Notice of Family Claim is filed to have a trial if a divorce proceeding can’t be settled. Before the trial, you or your spouse may need the court to make temporary orders about important issues, such as the payment of child support or spousal support, where the children will live, or who will live in the family home. These are called “interim orders,” and are made following a party’s application to the court, called an “interim application.” Interim orders last until another interim order is made or until the final order ending the case is made.

Interim applications are made by filing a Notice of Application (a court form which explains the orders you want the court to make and sets the date for the hearing of the application) and a supporting affidavit (a sworn statement describing the background to the application), to which the other spouse will have the opportunity to reply. Typically, these pre-trial applications take anywhere from 15 minutes to 3 hours to complete, depending on the complexity of the issues.

Interim applications should be taken very seriously as interim orders are often influential in the final outcome of the case. For more information, see script 112 on “Applying for an Interim Order in a Family Law Case in the Supreme Court”.

Remember that each time you go to court, it will cost time and money

The more you can agree on things with your spouse, the easier it will be for each of you. Try to save interim applications for really important problems, and always (if you can) see whether you can reach an agreement about the interim application before going to court. If you need help talking with your spouse, you can contact a mediator. For more information on mediation, refer to script 111 on “Mediation and Collaborative Settlement Processes”.

Can you object to a divorce?

You can object to a divorce, but you’re not likely to succeed. Most of the time, the judge will make a divorce order as long as the ground for the divorce is proven, whether you want the divorce or not. There are rare situations where a divorce might be refused, for example, if the divorce means the termination of pension benefits a spouse is receiving or if adequate arrangements have not been made for the support of any children.

When does the divorce order take effect?

Divorce orders take effect 31 days after the date the order is made, unless the judge making the divorce order says that it will take effect sooner. The reason for the delay is to allow a spouse to appeal the divorce. Appeals like these are very rare.

What are your rights after the divorce order is made?

If your divorce order doesn’t make orders about the division of property or debt and you didn’t claim a division of assets in your Notice of Family Claim or Counterclaim, you have two years after the date of your divorce to make the claim under the Family Law Act. After the two years, you will be out of time to make the claim.

Divorced spouses are always entitled to make a claim for spousal support under the Divorce Act, no matter how long they have been divorced. Divorced spouses are always entitled to make a claim about children, such as claims for custody or child support, as long as the children qualify as “children of the marriage” under the Divorce Act or as “children” under the Family Law Act.

More information

• For more information about divorce and divorce proceedings see the Divorce page of the wikibook JP Boyd on Family Law, published by Courthouse Libraries BC.
• For more information about responding to a divorce proceeding, see the page Replying to a Court Proceeding in a Family Matter.

[updated October 2014]

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In law, to formally deliver documents to a person in a manner that complies with the rules of court. Service may be ordinary (mailed or delivered to a litigant's address for service), personal (hand-delivered to a person), or substituted (performed in a way other than the rules normally require). See "address for delivery," "ordinary service," "personal service" and "substituted service."

Under the Divorce Act, either of two people who are married to one another, whether of the same or opposite genders. Under the Family Law Act, spouse includes married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years and have had a child together. See "marriage" and "marriage-like relationship."

The legal termination of a valid marriage by an order of a judge; the ending of a marital relationship and the conjugal obligations of each spouse to the other. See "conjugal rights," "marriage" and "marriage, validity of."

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."

(1) In law, a court proceeding; a lawsuit; an action; a cause of action; a claim. (2) A historic decision of the court; case law. See "action," "case law, " "court proceeding," and "precedent."

A legal document required by the Supreme Court Family Rules to begin a court proceeding, setting out the relief claimed by the claimant and the grounds on which that relief is claimed. See "action," "claim," "claimant," "pleadings" and "relief."

The person who starts a court proceeding seeking an order for a specific remedy or relief against another person, the respondent. See "action" and "respondent."

The person against whom a claim has been brought by Notice of Family Claim. See “application” and “Notice of Family Claim."

In law, the delivery of a legal document to a party in a court proceeding in a manner which complies with the rules of court, usually by physically handing the document to the party and verifying their identity. Personal service is usually required for the proper delivery of the pleadings that are used to start a proceeding to ensure that the party is given proper notice of the proceeding and the opportunity to mount a defence. See also "ordinary service," "pleadings" and "service, substituted."

In law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support."

A legal document required by the Supreme Court Family Rules in which the respondent to a court proceeding sets out their reply to the claimant's claim and the grounds for their reply. See "action," claim," "Notice of Family Claim" and "pleadings."

Sending legal documents to a party at that party's "address for service," usually by mail, fax, or email. Certain documents, like a Notice of Family Claim, must be served on the other party by personal service. Most other documents may be served by ordinary service. See also "address for service" and "personal service."

The address at which a party to a court proceeding agrees to accept delivery of legal documents. An address for service must be a proper street address within British Columbia; additional addresses for service may include postal addresses, fax numbers, and email addresses.

A legal relationship between two persons, whether of the same or opposite genders, that is solemnized by a marriage commissioner or licenced religious official and gives rise to certain mutual rights, benefits, and obligations. See also "conjugal rights," "consortium," and "marriage, validity of."

In family law, the decision of one or both parties to terminate a married or unmarried relationship; the act of one person leaving the family home to live somewhere else with the intention of terminating the relationship. There is no such thing as a "legal separation." In general, one separates by simply moving out, however, it is possible to be separated but still live under the same roof. See "divorce, grounds of."

A mandatory direction of the court that is binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. Failing to abide by the terms of an order may constitute contempt of court. See "appeal," "consent order," "contempt of court," "decision" and "declaration."

A payment made by one spouse to the other spouse to help with the recipient's day-to-day living expenses or to compensate the recipient for the financial choices the spouses made during the relationship.

Money paid by one parent or guardian to another parent or guardian as a contribution toward the cost of a child's living and other expenses.

A term under the Family Law Act referring to property acquired by either or both spouses during their relationship, as well as after separation if bought with family property. Both spouses are presumed to be entitled to share equally in any family property. See "excluded property."

A term under the Family Law Act referring to debt owed by either or both spouses that accumulated during the spouses' relationship, as well as after separation if used to maintain family property. Both spouses are presumed to be equally liable for family debt.

A married person's voluntary sexual intercourse with a person other than their spouse, also known as cheating, playing the field and fishing out of season. Proof of adultery is grounds for an immediate divorce, providing that the spouse complaining of the adultery can prove that the adultery occurred and that they have not consented to or forgiven the adulterous act. See "collusion," "condonation," and "divorce, grounds of."

In family law, the physical, verbal, emotional, or mental abuse of one married spouse by the other. Proof of cruelty is grounds for an immediate divorce, providing that the other spouse has not forgiven the cruelty. See "condonation" and "divorce, grounds of."

In family law, an antiquated term used by the old Divorce Act to describe the right to possess a child and make parenting decisions concerning the child's health, welfare and upbringing. Replaced in the new Divorce Act with the term decision-making responsibility." See "access," "decision-making responsibility" and "parenting time."

A term used by the old Divorce Act when both spouses have custody of a child, giving both the right to make parenting decisions concerning the child's health, welfare, and upbringing, but not necessarily requiring or implying that the spouses have equal or near-equal amounts of time with the child. See “access," "custody" and "decision-making responsibility."

Something which can be owned. See "chattels" and "real property."

A term under the Family Law Act referring to property acquired by a spouse prior to the commencement of the spouses' relationship and certain property acquired by a spouse during the relationship, including gifts, inheritances, court awards, and insurance payments. A spouse is presumed to be entitled to keep their excluded property without having to share it with the other spouse. See "family property," "gift" and "inheritance."

In law, (1) the whole of the conduct of a court proceeding, from beginning to end, and the steps in between, may also be used to refer to (2) a specific hearing or trial. See "action."

A court proceeding under the Divorce Act in which a spouse seeks a divorce order. See "divorce."

A person appointed by the federal or provincial government to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government, or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, subject to appeal.

The testing of the claims in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a decision resolving the parties' claims against one another that is final and binding on the parties unless successfully appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction."

A sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt; a "creditor" is the person to whom the debt is owed.

In law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision."

Since January 2024, these provincially-appointed judicial officials of the BC Supreme Court are now called associate judges. They serve a similar role as justices of the BC Supreme Court, but have limited jurisdiction. Associate judges are usually charged with making interim decisions before final judgment in a court proceeding, and certain decisions after final judgment, including the assessment of lawyers' bills and the settling of bills of cost. See "interim application," "judge" and "jurisdiction."

(1) In the context of negotiation or mediation, an arrangement that neither party will be able to use the content of the settlement discussions in a court proceeding. (2) In the context of litigation, an arrangement that a party's agreement to a certain order will not affect the legal rights of either party. (3) In the context of a settlement proposal, a stipulation that the contents of the proposal may not be shown to the court until the court proceeding has concluded. See "consent order," "mediation," "negotiation," "offer to settle" and "settlement."

A resolution of one or more issues in a court proceeding or legal dispute with the agreement of the parties to the proceeding or dispute, usually recorded in a written agreement or in an order that all parties agree the court should make. A court proceeding can be settled at any time before the conclusion of trial. See "action," "consent order," "family law agreements" and "offer."

(1) The assertion of a legal right to an order or to a thing; (2) the remedy or relief sought by a party to a court proceeding.

In family law, this usually refers to one party obtaining a part of any property at issue before the property has been finally divided by court order or the parties' agreement, usually in order to help pay for that person's legal fees.

An application, also called an "interlocutory application," made after the start of a court proceeding but before its conclusion, usually for temporary relief pending the final resolution of the proceeding at trial or by settlement. In family law, interim applications are useful to determine issues like where the children will live, who will pay child support, and whether spousal support should be paid on a rough and ready basis. See "application" and "interim order."

In family law, the dwelling occupied by a family as their primary residence. See "family property" and "real property."

In law, a person named as an applicant, claimant, respondent, or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant."

A request to the court that it make a specific order, usually on an interim or temporary basis, also called a "chambers application" or a "motion." See also "interim application" and "relief."

Any order made prior to the final resolution of a court proceeding by trial or by settlement; a temporary, rather than permanent or final, order. See "application" and "interim application."

A legal document required by the Supreme Court Family Rules to bring an interim application, setting out the relief claimed by the applicant, the grounds on which that relief is claimed, and the date on which the application will be heard. See "applicant," "grounds," "interim application" and "relief."

A legal document in which a person provides evidence of certain facts and events in writing. The person making the affidavit, the deponent, must confirm that the statements made in the affidavit are true by oath or affirmation. Affidavits must be signed in front of a lawyer, a notary public or a commissioner for taking oaths, who takes the oath or affirmation of the deponent. Affidavits are used as evidence, just as if the person making the affidavit had made the statements as a witness at trial. See "deponent", "affirm," "oath" and "witness."

In law, an answer or rebuttal to a claim made or a defence raised by the other party to a court proceeding or legal dispute. See "action," "claim," "defence" and "rebut."

Normally referred to as the "Supreme Court of British Columbia," this court hears most of the trials in this province. The Supreme Court is a court of inherent jurisdiction and has no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada."

Under the Family Law Act, a term that describes the time a person who is not a guardian of a child, including a parent who is not a guardian, has with that child. Under the Divorce Act, a term that describes the time a person who is not a married spouse has with a child. See "guardian" and "parental responsibilities."

A dispute resolution process in which a specially-trained neutral person facilitates discussions between the parties to a legal dispute and helps them reach a compromise settling the dispute. See "alternative dispute resolution" and "family law mediator."

An application to a higher court for a review of the correctness of a decision of a lower court. A decision of a judge of the Provincial Court of British Columbia can be appealed to the Supreme Court of British Columbia. A decision of a judge of the Supreme Court can be appealed to the Court of Appeal for British Columbia. See "appellant" and "respondent."