Difference between revisions of "Responding to Divorce Proceedings"

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{{Dial-A-Law TOC|expanded = family}}
{{Dial-A-Law TOC|expanded = family}}
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. '''You have only a limited time to respond to the divorce papers'''.
If a divorce proceeding has been started against you, you have two choices: do nothing or respond to the proceeding. Learn what’s involved in responding to divorce proceedings in BC.


This script only applies to married spouses. Unmarried spouses do not need to get a divorce.
==Understand your legal rights==


==What court forms are used to sue for divorce?==
===A divorce proceeding begins with a notice of claim===  
The document you’ll receive (or have already received) is called a '''Notice of Family Claim'''. Your spouse, the person who sued, is the '''claimant'''. You are the '''respondent'''.
When your spouse begins divorce proceedings, they file '''notice of claim''' in court. Your spouse is the '''claimant'''. You are called the '''respondent'''.


The claimant must arrange for personal service of the Notice of Family Claim on the respondent. This means that the Notice of Family Claim must be delivered to you in person by someone other than your spouse. If you’re not available to receive the papers or the claimant has serving you personally, they 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.
====The notice of claim must be served on you====
The claimant must arrange for the notice of claim to be '''personally served''' on the respondent. This means the notice of claim must be given to you in person by someone other than your spouse.  


Read the Notice of Family Claim carefully. It 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 and whether you agree with the claims or not.
If you’re not available to receive the papers or the claimant has trouble serving you personally, they can seek the court’s permission to serve you '''substitutionally'''. This might involve, for example, leaving the papers at your last known address, with your close relatives, or in your mailbox.


==Consider getting a lawyer==
====Read the notice of claim====
Because the claims 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 seeking.
Read the notice of claim carefully. It states the orders the claimant wants the court to make. Whether and how you respond to the notice of claim depends on the orders the claimant is asking for and whether you agree with the claims or not.


==There are strict time limits to respond==
{| class="wikitable"
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 on the claimant by '''ordinary service'''. It is very important to do this if you disagree with any of the orders the claimant is asking for. If you don’t respond, the court can make the orders your spouse is asking for without any further notice to you.
|align="left"|'''Tip'''
Because the claims in a divorce proceeding could significantly affect your rights, you should consider asking a lawyer to review the notice of claim with you and explain what it means.
|}


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 their Notice of Family Claim.
===There are time limits to respond===
You must respond to the notice of claim '''within 30 days of the date you were served'''. You respond by filing a '''response''' in court and serving the filed response on the claimant.  


==What’s in the Notice of Family Claim?==
It is very important to respond if you disagree with any of the orders the claimant is asking for. If you don’t respond, the court can make the orders your spouse is asking for without any further notice to you.
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 divorce, but your spouse can also ask for orders about the parenting of your children, spousal support, child support, the division of family property and family debt, costs, and other subjects.


==The reason why your spouse is asking for a divorce==
You can serve the response on the claimant by '''ordinary service'''. This involves mailing or faxing (or sometimes emailing) the document to the claimant’s “address for service”. The claimant’s address for service will be set out in their notice of claim.
The Notice will state the reason your spouse is seeking a divorce, 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 information on the legal basis for divorce, check script [[Requirements for Divorce and Annulment (Script 120)|120]] called “Requirements for Divorce and Annulment”.


==Consider the claims carefully==
===The notice of claim can include several claims===  
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 and pension? Is there a reason to share 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 want to make claims of your own, you must do so in a '''Counterclaim''', also explained later on in this script.
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.


==What if you don’t agree with what the Notice of Family Claim seeks?==
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 information on the legal basis for divorce, see our information on [[Requirements for Divorce and Annulment (Script 120)|the requirements for divorce (no. 120)]].
You should file a Response to Family Claim, which tells the court what claims you agree with and which you oppose. But 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'''. And a trial may be necessary if you can’t settle the dispute.


==What if you want to make your own claims?==
===Other 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 '''Counterclaim'''. The Counterclaim says what orders you want the court to make. Just like the Response to Family Claim, you must file and serve the Counterclaim on the claimant within 30 days after being served.
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.


==What’s a judicial case conference?==
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?
You or the claimant can schedule a judicial case conference (JCC) after you have filed and served a Response to Family Claim or Counterclaim. A JCC 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. JCC is held in private and '''without prejudice'''. This means that each of you can make settlement proposals at the JCC without being held to your proposal later on, if you don’t reach a settlement.


==The JCC is a great chance to tell the judge and the claimant what you really want==
===If you don’t agree with what the notice of claim seeks===
Everything you say at a JCC is confidential. It can’t be repeated outside the meeting room or used later, so speak your mind and explain what orders you’re looking for and why. The judge or master will not make any decisions, unless you and your spouse both agree. But the judge or master can make procedural orders, such as when financial documents should be exchanged and the dates for the trial.
If you dispute any of the claims in the notice of claim, you must respond. You respond by filing a '''response''' in court and serving the filed response on the claimant.  


==When will the divorce be granted?==
You must respond to the notice of claim '''within 30 days of the date you were served''' with the notice.
If the claim for divorce is based on one-year 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. 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.
 
Filing a response makes the proceeding a '''contested divorce'''. A trial may be necessary if you can’t settle the dispute.
 
===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. As with the response, you must file and serve the counterclaim on the claimant within 30 days of the date you were served with the notice of 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.
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 is an interim application?==
===What if there are matters needing to be dealt with right away?===  
It can take a year or more from the time the Notice of Family Claim is filed 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. That’s called 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.
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 in a Family Law Case in the Supreme Court (Script 112)|applying for an interim order (no. 112)]].


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 basis for the application). The other spouse will have the opportunity to respond. Typically, interim application hearings take anywhere from 15 minutes to 3 hours or more, depending on the circumstances.
{| class="wikitable"
|align="left"|'''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.
|}


Interim applications should be taken very seriously as interim orders are often influential in the final outcome of the case. Script [[Applying for an Interim Order in a Family Law Case in the Supreme Court (Script 112)|112]] on “Applying for an Interim Order in a Family Law Case in the Supreme Court” has more on this.
===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.


==Each time you go to court, it costs time and money==
===What’s a judicial case conference?===
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. Script [[Mediation and Collaborative Settlement Processes (Script 111)|111]] on “Mediation and Collaborative Settlement Processes” has more on mediation.
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.


==Can you object to a divorce?==
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.)
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. Rarely, a judge may refuse a divorce, 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?==
===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.
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.


==What are your rights after the divorce order is made?==
===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 assets in your Notice of Family Claim or Counterclaim, 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''.
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.  


But divorced spouses may be able to seek spousal support under the ''Divorce Act'' outside of this two-year limitation period. You should see a lawyer about whether you can do this.
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''.


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 (or guardianship and parenting arrangements under the ''Family Law Act'') 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''.
==Get help==


==More information==
===With more information===
*See the [http://wiki.clicklaw.bc.ca/index.php/Divorce Divorce page] of ''JP Boyd on Family Law''.
The wikibook '''''JP Boyd on Family Law''''' includes information on replying to a court proceeding in a family matter.
*See [http://wiki.clicklaw.bc.ca/index.php/Replying_to_a_Court_Proceeding_in_a_Family_Matter Replying to a Court Proceeding in a Family Matter].
:Web: [http://wiki.clicklaw.bc.ca/index.php/Replying_to_a_Court_Proceeding_in_a_Family_Matter wiki.clicklaw.bc.ca]  




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[updated October 2018]
[updated October 2018]


'''The above was last reviewed for legal accuracy by Samantha de Wit of Brown Henderson Melbye, and edited by John Blois.'''
'''The above was last reviewed for legal accuracy by [http://bhmlawyers.ca/team-2/samantha-de-wit/ Samantha de Wit], Brown Henderson Melbye, and [http://jimalelawcorp.com/about-zahra/ Zahra H. Jimale], Jimale Law Corporation.'''


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