Responding to Divorce Proceedings (No. 122)
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Samantha de Wit, Brown Henderson Melbye, and Zahra H. Jimale, Jimale Law Corporation in October 2018.|
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.
- 1 Understand your legal rights
- 1.1 A divorce proceeding begins with a notice of claim
- 1.2 There are time limits to respond
- 1.3 The notice of claim can include several claims
- 1.4 If you don’t agree with what the notice of claim seeks
- 1.5 If you want to make your own claims
- 2 Common questions
- 3 Get help
Understand your legal rights
A divorce proceeding begins with a notice of claim
When your spouse begins divorce proceedings, they file notice of claim in court. Your spouse is the claimant. You are called the respondent.
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.
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.
Read the notice of claim
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.
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.
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.
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.
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 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 information on the legal basis for divorce, see our information on the requirements for divorce (no. 120).
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 what the notice of claim seeks
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.
You must respond to the notice of claim within 30 days of the date you were served with the notice.
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.
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 (no. 112).
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.
With more information
The wikibook JP Boyd on Family Law includes information on replying to a court proceeding in a family matter.
- Web: wiki.clicklaw.bc.ca
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