Divorce and the Law on Getting Divorced
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.
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.
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.
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.
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.
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.
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.
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.
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:
- when the only issue between you and your spouse is getting a divorce, or
- 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:
- the sole application process, in which only one spouse is responsible for ushering the process through, and
- 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, 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:
Prepare your Notice of Family Claim. Make three copies of the original.
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.
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.
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.
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.
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.
Once you've filed your application, wait four weeks.
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:
Wait 32 days from the date the divorce order was made. (The date will be shown on the first page of the order.)
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:
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.
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.
While you're at the registry counter, execute the remaining affidavit in support of the application for divorce, and pay the $40 court fee.
Once you've filed your application, wait four weeks.
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:
Wait 32 days from the date the order was made. (The date will be shown on the first page of the order.)
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.
Access Pro Bono offers free meetings with lawyers 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 will give them a check to make sure that the registry will accept them.
The British Columbia Continuing Legal Education Society has published an excellent guide to the desk order divorce process called 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.
The Legal Services Society of BC also has an excellent online step-by-step guide to the divorce process.
The BC Ministry of Attorney General has an online do-it-yourself joint divorce application process. This process can only be used when all orders being sought are by consent and neither party has any dependent children.
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 $1,000 and $2,500 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, including these businesses:
If I understand things correctly, untietheknot.ca will also file your documents in court for you. A Google search for the phrase "desk order divorce BC" should provide you with a few other options, but whatever you do, make sure you're using a service that offers the forms required for a divorce in British Columbia!
What happens if a response or counterclaim 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
- Supreme Court of British Columbia website
- Provincial Court of British Columbia website
- Families Change website from the Justice Education Society of BC and BC Ministry of Attorney General
- Support and Resources for Dealing with Separation and Divorce website from the BC Ministry of Attorney General
- Untie the Knot Divorce Service
- Canadian Divorce Online
- Legal Services Society's Family Law website's information page "Getting a divorce"
- "Living Together or Living Apart: Common-Law Relationships, Marriage, Separation, and Divorce" from Legal Aid BC
- Divorce Fact Sheet website from the Department of Justice
- Separation and Separation Agreements from Dial-a-Law by the People's Law School
- Deciding Who Will Move Out When You Separate from Dial-a-Law by the People's Law School
- "Coping with Separation Handbook" from Legal Aid BC
- MyLaw BC Make a Separation Plan Pathway from Legal Aid BC
- Parent Guide to Separation and Divorce from the Justice Education Society of BC
- "Legal Health Checks: Breaking Up - Without Court" from the Canadian Bar Association
- Going Through Separation from Legal Aid BC
- "Ending Relationships" video from John-Paul Boyd, QC
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 26 March 2020.|
|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.|