Simple Divorce Procedure: Step by Step (3:VI)

The following are steps to help applicants through the process.

NOTE: If the client is representing themselves, the client is responsible for purchasing the Self-Counsel Press divorce guide and forms. The instructions and steps for filling out the forms and filing them, etc. are included in the kit.

A. Sole Application

Step 1: Collect all necessary documents: i.e. the marriage certificate, copies of court orders or agreements regarding custody, access, and support of the children.

Step 2: The client fills in the Notice of Family Claim and relevant schedules.

Step 3: The client fills in the Registration of Divorce form, only available online.

Step 4: The client should then go to the nearest Supreme Court, and bring the original and three copies of the Notice of Family Claim, the original marriage certificate or the certified copy of the marriage registration, and $210 in cash, debit, money order, or cheque, payable to the Minister of Finance.

Step 5: In the sole application process, the client must then arrange for the court-stamped Notice of Family Claim to be personally served on the respondent.

Service by a friend: The friend should know the respondent, but not be involved in the divorce in any way. When the friend serves the respondent, the friend should ask whether the respondent is Mr./Ms. X, and ask for identification. It would be helpful, although not mandatory, to give the friend a picture of the respondent. The friend will then have to swear an affidavit of personal service, and the friend will have to say how he or she identified the spouse (Supreme Court Family Rules, r. 6-3).

Service by a Process Server: Process Servers are listed in the Yellow Pages. They require the addresses of the respondent, home and business, the telephone numbers, and a photograph of the respondent. They will also need two copies of the Notice of Family Claim, one for the spouse, and one to staple tothe affidavit of personal service.

Alternate Service: Evidence of efforts to find the respondent will be required before an order for alternate service can be granted. Some methods of finding the respondent are:

• calling or writing to relatives (usually the most successful);
• advertising in a local newspaper;
• writing to the Superintendent of Motor Vehicles to see if any vehicles have been registered in his or her name. The client should ask whether any fees will be incurred before proceeding;
• asking the local police if they have any information on his whereabouts, although they are usually reluctant to help;
• using a credit bureau or collection agency; or
• asking friends of the respondent about his current address.

Step 6: Once the time for the respondent to file a Response to Family Claim has expired, the spouse applying for the divorce must swear an affidavit. The affidavit will need to be sworn before a notary public, the registry staff ($40), or a lawyer. The time limit for filing a Response to Family Claim orCounterclaim, is 30 days, or, in the case of a substitution service order, such time as the order provides for the filing of a Response to Family Claim or Counterclaim.

Step 7: If there are any children, a child support affidavit must be filled out and sworn before a notary public, the registry staff, or a lawyer.

Step 8: The claimant applies for the divorce order. This requires:

• a) a requisition in Form F35 requesting an order that the parties be divorced;
• b) a draft of the order sought;
• c) the original of the affidavit of service complete with all exhibits and any supplementary affidavits confirming the identification of the respondent;
• d) a certificate of the registrar in Form F36;
• e) a requisition requesting a search for any Response to Family Claim;
• f) an affidavit in support of the application (Form F38), sworn after the time for the respondent to file a Response to Family Claim has expired, which includes proof of the allegations made regarding the breakdown of the marriage;
• g) a child support affidavit in Form F37, if there are children; and
• h) the filing fee.

Note that when the divorce is based on adultery or cruelty, proof of the adulterous or cruel conduct must be filed in affidavit form. Proof of adultery might consist of the respondent admission to the adulterous conduct. Proof of cruelty will usually consist in the affidavits of third parties, or letters from treating physicians, psychologists or psychiatrists attached to an affidavit as exhibits.

NOTE: If a Response to Family Claim has been filed, the respondent has chosen to contest all or some of the relief sought and a lawyer’s advice should be sought immediately.

Step 9: If the Court is prepared to make the order sought, the order will be available at the Court registry some time after the application is filed. Clients should simply call the registry to see whether their order is ready rather than attending in person. Clients will be required to show valid photo ID to pick up their divorce order.

Step 10: Thirty-one days after the divorce order has been granted (the date shown on the front of the divorce order), the client may apply to get a Certificate of Divorce by filing two copies of the requisition requesting a Certificate of Divorce. The fee is $31. Note that it is not always necessary to obtain a Certificate of Divorce.

B. Joint Application

In the joint application process, most of the required documents are filed at once. All required affidavits except one of the supporting affidavits may be sworn ahead of time. At least one of the supporting affidavits must be sworn and filed after the other materials are filed.

Step 1: Complete Steps 1 to 3 above. Both parties will be required to sign the Notice of Joint Family Claim.

Step 2: Complete all of the documents listed in Step 8 above, except for: one affidavit in support of the divorce application; the affidavit of service, and the requisition asking the registrar to search for a Response to Family Claim and Counterclaim.

Step 3: One or both parties attend Court to apply for the divorce order. This requires:

• a) a requisition in Form F35 requesting an order that the parties be divorced;
• b) a draft of the order sought;
• c) a certificate of the registrar in Form F36;
• d) one affidavit in support of the application, sworn after the time for the respondent to file a Response has expired, which includes proof of the allegations made regarding the breakdown of the marriage;
• e) a child support affidavit in Form F37, if there are children; and
• f) the filing fee.

A second affidavit in support of the application must be sworn and filed after the Notice of Joint Family Claim has been filed. That affidavit can be sworn at the court registry immediately after the filing of the other materials.

Step 4: Complete Steps 9 and 10 above.

C. Special Problems

1. Serving Divorce Papers Outside Canada

In circumstances where the respondent in a divorce action is living outside Canada, and is willing to go to the Canadian Consulate office nearest to where she or he lives in order to accept service, the Consul will serve the respondent at that office, for a fee. However, keep in mind that this form of service requires the respondent’s cooperation, as she or he must be willing to attend at the consular office personally when notified by its staff to do so.

To comply with the requirements of this form of service, the client must forward service documents to the Consulate:

• a copy of the Notice of Family Claim ;
• a partially completed Affidavit of Service (Form F15);
• Exhibit “A” to the Affidavit of Service (i.e. a copy of the Notice of Family Claim); OR
• If the country in which the respondent lives is a contracting state under the Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters, the respondent can be served using Forms F12, F13, and F14. See the Supreme Court Family Rule 6-5 for more details.

The client may then serve the documents outside of Canada. The Department of Authentication of Documents will help serve the documents. Their mailing address is:

Foreign Affairs and International Trade Canada

Legal Advisory Division (JLAC)

125 Sussex Drive

Ottawa, Ontario K1A 0G2

This office in Ottawa will in turn forward the documents to the appropriate consulate office. The charge will be billed to the client at the end, and is usually $50.

If the respondent is not willing to go to the consulate office to be served, the Department of External Affairs will not arrange service. In these cases, the client must find a friend or relative in that country who is willing to serve the respondent.

2. Foreign Language Marriage Certificates

Foreign language marriage certificates must be accompanied by a certified English translation. Certificates in French must also be translated. MOSAIC Translations will translate marriage documents. The minimum charge for this service is $35. It should be noted that foreign marriages might be considered valid if the evidence shows that the marriage is valid in the foreign country. The Society of Translators and Interpreters of BC also translates marriage certificates: (604) 684-2940.

3. Amending a Document

Under Rule 8-1 of the Supreme Court Family Rules, a party may amend his or her pleadings. A party may amend an originating process or pleading issued or filed by the party at any time with leave of the Court, and, subject to Rules 8-2(7), 8-2(9) and 9-6(5):

• once without leave of the Court, at any time before delivery of the notice of trial or hearing; and
• at any time with the written consent of all the parties.

Unless the Court otherwise orders, where a party amends a document under 8-1(1), a new document, being a copy of the original document but amended and bearing the date of the original, shall be filed.

Unless the Court otherwise orders, service on a party of an amended originating process or pleading shall be required if the original has been served on that party and no Response to Family Claim has been filed.

Unless the Court otherwise orders, where a party amends a document under 8-1(1), the party shall deliver copies of the amended document to all the parties of record within seven days after its amendment and, where service is required under 8-1(4), the party shall serve copies on the persons required to be served as soon as reasonably possible and before taking any further step in the proceeding.

Where an amended Notice of Family Claim, Counterclaim, or third party notice is served on an opposing party, the opposing party, if he or she has already delivered a Response to Family Claim, may amend that Response to Family Claim under the following conditions:

• the opposing party must amend the Response only with respect to any matter raised by the amendments to the Notice of Family Claim, Counterclaim, or third party notice; and
• the period for filing and delivering an amended Response to Family Claim to an amended Notice of Family Claim is 14 days after the amended pleading is delivered. Where a party does not serve an amended Response as provided in 8-1(5) the party shall be deemed to rely upon his or her original Response.

D. Contested Actions

If the claimant’s action is contested, the client should retain a lawyer, or at least seek a lawyer’s advice, before proceeding. However, there are some situations where it is possible for the respondent to file a Response to Family Claim without contesting the divorce application. For example, the respondent can speak to access without a contested action ensuing, but a support or custody issue would definitely result in a contested action, and a considerable wait for trial.

E. “Quick” Divorces

If there are special circumstances such that the parties would both agree to a quick divorce, the respondent can waive the waiting period after service by filing an answer, and then both parties sign a waiver of appeal. However, this will only speed up the procedure by a few weeks as the appeal period is 31 days.

It should be noted that the Court might not advance the date of divorce merely because of an impending birth or marriage. The Court must be “of the opinion that by reason of special circumstances the divorce should take effect earlier,” and the spouses agree not to appeal the decision: DA, s 12(2). The courts have interpreted “special circumstances” very strictly, and grant a quick divorce in exceptional cases only, e.g. where the immigration status of the claimant’s fiancée is in jeopardy, but not in the case of pregnancy or ordinary remarriage.