Responding to Divorce Proceedings

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Shelagh Kinney, Watson Goepel in April 2020.

If a divorce proceeding has been started against you, you have two choices: do nothing or respond. Learn what’s involved in responding to divorce proceedings in BC.

Alert! This information has been updated to reflect changes to the Divorce Act that took effect on March 1, 2021.

What you should know

A notice of family claim starts a divorce proceeding

When your spouse starts divorce proceedings, they file a notice of family claim in BC Supreme Court. Your spouse is the claimant. You are called the respondent.

You must be served with the notice

As the claimant, your spouse must arrange for the notice of family claim to be personally served on you. This means it must be given to you in person, but not by your spouse.

If you aren’t available to receive the papers or the claimant has trouble serving you personally, they can seek the court’s permission to serve you substitutionally. That means using a different method of service. It might involve, for example, leaving the papers at your last known address, with your close relatives, or in your mailbox.

Read the notice

Read the notice of family claim carefully. It sets out the court orders your spouse wants the court to make. If and how you respond to the notice depends on the orders your spouse is asking for, and whether or not you agree with the claims.

Tip The claims in a divorce proceeding could significantly affect your rights. Consider asking a lawyer to review the notice of family claim with you and explain what it means. See below under “Who can help” for free and low-cost options for advice.

The notice can include several claims

The notice of family claim gives the court basic information about you, your spouse, and any children. It also includes information about your marriage and separation. And it describes the orders your spouse is asking the court to make, such as for a divorce, support, and a division of property and debts.

The grounds for divorce

To get a divorce, your spouse must show your marriage has broken down. This can be done in three ways:

• by showing the two of you have lived apart for at least one year,
• by showing you committed adultery, or
• by showing you treated your spouse with cruelty that makes living together intolerable.

The notice of family claim will state your spouse’s reason for marriage breakdown, such as being separated for a year. You may agree with this. On the other hand, if your spouse is claiming adultery or cruelty and those claims aren’t true, you probably won’t agree. For more on the legal basis for divorce, see our information on the requirements for divorce.

Other claims

In the notice of family claim that starts a divorce proceeding, your spouse can also ask for orders about other issues. These might include the parenting and support of your children, spousal support, the division of family property and debts, and other matters.

Carefully consider what your spouse is asking for. If you have children, your spouse may be asking for parenting time and all decision-making responsibility under the Divorce Act. Do you feel that shared decision-making responsibility would be better? Or do you believe that you should have all decision-making responsibility? If your spouse is seeking a 50/50 division of family property, do you feel you should get more than half?

It’s a good idea to meet with a family lawyer and get legal advice if your spouse is making claims beyond seeking an order for divorce.

The notice of claim can include several claims

The notice of claim gives the court basic information about you and your spouse, and information about your marriage and separation. It describes the orders your spouse is asking the court to make. At a minimum, this will be an order for divorce.

The grounds for divorce

To get a divorce, your spouse must show your marriage has broken down. They can do this in three ways: by showing you have lived separate and apart for at least one year, by showing you committed adultery, or by showing you treated them with cruelty that makes living together intolerable.

The notice of claim will state the way your spouse plans to show marriage breakdown, such as a one-year separation. If you don’t dispute the reason, you might not object. On the other hand, if your spouse is claiming adultery or cruelty and those claims aren’t true, you will probably want to object. For more on the legal basis for divorce, see our information on the requirements for divorce.

Other claims

In the notice of claim your spouse can also ask for orders about the parenting and support of your children, spousal support, the division of family property, and other matters.

Carefully consider what your spouse is asking for. If you have children and your spouse is seeking sole custody of the children under the Divorce Act, do you feel that joint custody would be better, or that you should have sole custody? If your spouse is seeking a 50/50 division of family property, do you feel entitled to more than half?

If you don’t agree with the notice of family claim

If you disagree with any of the orders your spouse is asking for in the notice of family claim, you must respond. You do that by filling out a response to family claim (form F4). Part of this form involves certifying that you know about your duties under the Divorce Act to:

• exercise parenting rights in the best interests of the children,
• protect your children from conflict because of the court case,
• try to resolve your disagreements through mediation, collaborative negotiation, or arbitration, and
• provide complete, accurate, and up-to-date information as required.

Once you’ve completed the form, you must file it in the same court in which the notice of family claim was filed.

Along with your response, you may need to fill out and file other forms (such as a financial statement), depending on what claims your spouse is making. Then, you must serve the filed court forms on your spouse.

Tip You can download the response to family claim form, as well as other court forms, on the BC government website. The wikibook JP Boyd on Family Law includes samples of many completed forms.

There are time limits to respond

If you don’t agree with any of the orders your spouse is asking for, you must respond to the notice of family claim. You need to do so within 30 days of the date you were served.

If you want to make your own claims

If you have claims of your own you want to make — for example, about the parenting of your children, support, or how to divide property — you must file a counterclaim. The counterclaim says what orders you want the court to make. Just as you did with the response, you must fill out, file, and serve the counterclaim on your spouse. You must do this within 30 days of the date you were served with the notice of family claim.

Common questions

When will the divorce be granted?

If the claim for divorce is based on a one-year separation, the divorce order can be made any time after the one-year period is over. If the divorce claim is based on cruelty or adultery, the order can be made at any time. No matter what the claim is based on, 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 the issues are resolved, the court will usually be hesitant to make a divorce order before everything is resolved, without a very good reason for doing so.

What if there are matters needing to be dealt with right away?

From when a notice of claim is filed, it can take a year or more to have a trial, if a case cannot 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. They are made if one or both of you apply to the court. Doing so is an interim application. Interim orders last until another interim order is made or until the final order ending the case is made at trial or by agreement.

Interim applications are made by filing a notice of application (a court form describing the orders you want the court to make) and a supporting affidavit (a sworn statement describing the basis for the application). The other spouse will have the opportunity to respond. Typically, interim application hearings take anywhere from 15 minutes to three hours or more, depending on the circumstances.

Interim applications should be taken very seriously as interim orders are often influential in the final outcome of the case. See our information on applying for an interim order.

Tip Each time you go to court, it costs time and money. Try to save interim applications for really important problems. The more you can agree on things with your spouse, the easier it will be for each of you.

Can I 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 basis for the divorce is proven, whether you want it or not. In some rare situations a judge may refuse a divorce — for example, if adequate arrangements have not been made for the support of any children, or if the divorce means the end of pension benefits a spouse is receiving.

What’s a judicial case conference?

After you file a response, you or the claimant can schedule a judicial case conference. This is an informal meeting with a judge or master to talk about the claims each of you has made, see what can be agreed to, and talk about how the claims will be resolved. The conference is held in private and without prejudice. This means each of you can make settlement proposals at the meeting without being held to your proposal later on, if you don’t reach a settlement.

A judicial case conference is a great chance to tell the judge and the claimant what you really want. Everything you say at the meeting is confidential. It can’t be repeated outside the meeting room or used later. Speak your mind and explain what orders you’re looking for and why. The judge will not make any decisions, unless you and your spouse both agree. (Note the judge can make orders about procedure, such as when financial documents should be exchanged and the dates for the trial.)

When does the divorce order take effect?

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

Can I make a claim after the divorce order is made?

If your divorce order doesn’t cover the division of property or debt and you didn’t claim a division of property in the divorce proceeding, you have two years after the date of your divorce to make a claim under the Family Law Act. The same deadline applies to seeking spousal support for the first time under the Family Law Act.

Divorced spouses can always claim spousal support under the Divorce Act, no matter how long they have been divorced.

Divorced spouses can always make a claim about children — such as claims for custody, guardianship, 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.

Who can help

With more information

The wikibook JP Boyd on Family Law includes information on replying to a court proceeding in a family matter.

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