Divorce (3:IV)

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A. Legislation

The federal legislation governing divorces in Canada is the DA. The DA applies to legally married couples, including same sex couples as long as residency requirements for one spouse are met. It does not apply to common law couples or other unmarried couples. The provincial family law legislation in BC is the FLA, which applies to people in all relationships. The reason there are two statutes governing this area is the division of powers under sections 91 and 92 of the Constitution Act, 1867, which gives the federal government jurisdiction over “Marriage and Divorce” (s 91), while giving provincial governments jurisdiction over “The Solemnization of Marriage in the Province” and “Property and Civil Rights” (s 92).

B. Jurisdiction

1. Supreme Court

The Supreme Court of British Columbia has jurisdiction over both the DA and the FLA. Because all divorce claims must be heard under the DA, the Supreme Court has exclusive jurisdiction over divorce claims. The Supreme Court has concurrent jurisdiction with Provincial Court over guardianship, parenting arrangements and support for children (including common law couples) while division of property is under exclusive jurisdiction of the Supreme Court. If a Supreme Court order for custody, access, or support is made under the DA, that order supersedes any existing FLA order. However, given the new FLA and change of terms under the provincial legislation (custody, guardianship and access to guardianship, parenting arrangements and contract), there is likely to be litigation about which act applies and when.

An uncontested divorce does not require a personal appearance in Supreme Court. Evidence can be submitted by affidavit with the application for the Divorce Order, called a “Desk Order Divorce”. In fact, parties are required to submit applications for Divorce by way of a “Desk Order” unless there is a reason to bring it on by way of application in Chambers.

2. Provincial Court

The Provincial Court only has jurisdiction to hear matters under the FLA and cannot hear any claim under the DA, including divorce applications. The Provincial Court can make orders or vary original Provincial Court orders relating to guardianship, parenting arrangements, contact, child support, and spousal support. The Court does not have jurisdiction to deal with claims for the division of property under the FLA.