Divorce and the Law on Getting Divorced

Divorce is the legal termination of a marriage by an order of the court. Without this order, a couple will remain married to each other no matter how long they've been separated. Although a divorce order represents the formal conclusion of a marriage, where children are involved or one spouse is financially dependent on the other, issues about the payment of support and the care of the children will continue.

This section provides an overview of the grounds for divorce, and discusses the nature of a divorce order and the effect of foreign divorce orders in Canada. It also reviews 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 within the section Married Spouses.

The grounds for divorce

Under the federal Divorce Act there is really only one reason why you can apply for a divorce order, marriage breakdown. Under s. 8 of the act, there are three reasons why marriage breakdown may have occurred:

1. the intentional separation of the spouses for at least one year;
2. the adultery of a spouse; and,
3. one spouse's treatment of the other with such mental or physical cruelty that it is impossible to continue the marriage.

In Canada, all divorces proceed on a no-fault basis, regardless of the ground of divorce relied upon. No-fault, in this context, means that the reasons for marriage breakdown have nothing at all to do with the court's consideration of issues like custody and support. No matter how upset someone is by a spouse's misbehaviour, it will have no impact on how the legal issues are addressed.

Most divorces are based on separation. The only advantage of seeking a divorce based on cruelty or adultery is that the divorce is available relatively quickly; you needn't wait for a year's worth of separation to pass before you are eligible for the order. However, while you are eligible to begin divorce proceedings as soon as you learn of the adultery or experience the cruelty, you must be able to prove that the other spouse committed the wrongful behaviour you allege.

As you can imagine, few people are prepared to admit that they committed adultery or battered their spouse, and as a result divorces based on these grounds rarely proceed smoothly. In fact, where a court action has dragged on long enough so that more than a year has passed since the parties separated before the matter finally comes to court, some judges will refuse to hear any evidence of the wrongful behaviour and will grant the divorce instead on the basis of the parties' separation.

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 living separate and apart can pass while living under the same roof, however the marital qualities of your relationship with your spouse must have ended.

The Divorce Act provides that a couple can attempt to reconcile and resume married life for up to 90 days during this one-year period. If the couple live together for a total period of more than 90 days with the intention of getting back together, the clock resets and a new one-year period will not start running until after the couple separates again.

Adultery

A spouse who is claiming that the other spouse is guilty of adultery must prove this claim in court. Before the court will pronounce the order for divorce, the court must also be satisfied that the party making the claim has not condoned the adultery or connived to effect the adultery. If the court is not satisfied, it will not grant the divorce.

Proof of adultery normally consists of an affidavit from either your spouse or the person with whom your spouse committed the adulterous act, admitting to the adultery. You cannot seek a divorce based on your own adulterous conduct.

Many people will have seen the movie "Intolerable Cruelty," which lays a great deal 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 US, but it certainly 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 in a cardboard box. Adultery, while relevant as a ground of divorce, plays no role in the court's determination of these other issues.

Cruelty

A spouse who claims that the other spouse is guilty of cruelty must prove his or her claim in court. 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. Before the court will pronounce the divorce order, it must be satisfied that the party making the claim has not condoned the cruelty.

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.

Conspiracy, connivance and condonation

If a court finds that there has been conspiracy, connivance, or condonation in the application for the divorce order, the court will not grant the order. The point of this is to ensure that a couple are not attempting to escape the requirements of the Divorce Act and cheat the court to get a quick divorce.

If there has been condonation, the marital offence used to found the divorce claim, adultery or cruelty, has been forgiven. If the act has been forgiven, the court cannot pronounce a divorce order since the marital relationship hasn't broken down.

Conspiracy and connivance are both attempts to cheat the court. A relationship must have legitimately broken down before the court will officially dissolve it; anything else would be a fraud upon the court. Conspiracy means that the spouses have worked together to achieve the wrongful act providing the ground for divorce. This could mean, for example, an agreement between the spouses for one of them to have sex with someone else in order to claim adultery as a ground of divorce. Connivance means to arrange for the wrongful act to occur. For example, this could include one spouse arranging for the other to be seduced by someone else in order to claim adultery as a ground of divorce.

Child support

The court is required, under s. 11(1)(b) of the Divorce Act, to satisfy itself that "reasonable arrangements" have been made for the support of the 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 have to prove 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 $10,800 per year is zero.

The only possible exception to this rule would be if the parent to whom child support is payable cannot be found, and the child support payments therefore cannot be paid. In such circumstances the court may make a divorce order that doesn't refer to child support, or it may make an order that merely refers to the payor's obligation to pay child support without fixing an amount payable.

The divorce order

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 proceeding began,
• the ground on which marriage breakdown in claimed has been proven, and,
• if there are children, an adequate amount of child support is being paid.

It is possible to oppose an application for a divorce order. Practically speaking, however, by the time the application gets before a judge, the responding party has usually come to realize that a divorce is inevitable. If the court is satisfied that the applicant is entitled to his or her order because the grounds for the divorce have been proven, the divorce is usually granted despite any objections by the other spouse.

Corollary relief

An order for divorce can be made on its own or together with corollary relief. Typical orders for corollary relief include orders about the care of children, child support, and spousal support.

Divorce orders are usually made after all of the corollary issues, if any, have been dealt with, either as a result of a trial or a settlement reached following negotiations. The court will be reluctant to make a divorce order until all of the legal issues have been addressed.

The appeal period

Orders for divorce usually contain a term that "this order shall not take effect until the 31st day after its pronouncement." This to allow the 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 this 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 party may apply to the court, for a small filing fee, for a Certificate of Divorce. This is, strictly speaking, unnecessary, as the order is itself sufficient proof of divorce. Nevertheless, people often want this certificate to obtain a sense of closure, or because they expect to marry within the next couple of years, or because they may wish to prove 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.

Foreign divorce orders

Section 22(1) of the Divorce Act deals with the effect in Canada of divorces obtained outside Canada. In a nutshell, if a divorce was properly granted by the 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 "ordinarily resident" in the country in which the divorce was obtained 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 in Sri Lanka. As long as you had lived in Sri Lanka for more than one year before you started your application, your divorce there will be valid in Canada.

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 involving the division of property and pensions. You can find more information about the property entitlements of married spouses in the chapter Property and Debt in Family Law Matters within the section Dividing property and debt under the Family Law Act.

The do-it-yourself divorce

The only way to obtain an order for divorce is by starting a court proceeding; you must sue your spouse if you want to get divorced. The do-it-yourself process, called the desk order divorce process, allows you to obtain a final order for divorce without ever having to appear in court, and the order can deal with all of the issues between you and your spouse, from divorce to the division of property to child support.

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 daunting, 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:

1. when the only issue between you and your spouse is getting a divorce; or,
2. when you have other issues, but those 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 plus corollary relief, that is, orders apart from the divorce order itself, such as orders dealing with care of children, support, or the division of assets.

Most court proceedings go like this: the claimant files a Notice of Family Claim and serves it on the respondent; the respondent then files a Response to Family Claim and sometimes a Counterclaim. If the respondent fails to file a Response to Family Claim, 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.

There are two types of desk order divorce actions:

1. the sole application process, in which only one spouse is responsible for ushering the process through; and,
2. the joint application process, in which the 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.
• A sole application takes a little longer since the person bringing the action has to serve the other spouse 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 Family Claim, and both must execute an affidavit for the application for the divorce order.

The sole divorce application

These instructions are for the sole divorce application process.

Step One

Prepare your Notice of Family Claim. Make three copies of the original.

Step Two

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.

Step Three

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 the materials on your ex, and will use the photograph and the remaining copy in his or her Affidavit of Personal Service to prove that your ex was served.

Step Four

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 are filed?" at the end of this section.

Step Five

Prepare your 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.

Step Six

Go to the court registry you filed your materials at, 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.

Step Seven

Once you've filed your application, wait four weeks.

Step Eight

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, 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:

Step Nine

Wait 32 days from the date the divorce order was made. The date will be shown on the first page of the order.

Step Ten

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.

These are the main differences between the joint application process and the sole application process:

• The parties are known as claimant 1 and claimant 2.
• A special form Notice of Family Claim is required.
• Both parties sign the Notice of Family Claim.
• The Notice of Family Claim does not need to be served on anyone, and there is 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.
• 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 are filed?" at the end of this section.

These instructions are for the joint divorce application process.

Step One

Prepare a Joint Notice of 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.

Step Two

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 Joint Notice of Family Claim, keep the original, and give you back the two duplicates. Your Marriage Certificate will go into the court file.

Step Three

While you're at the registry counter, execute the remaining affidavit in support of the application for divorce, and pay the $40 court fee.

Step Four

Once you've filed your application, wait four weeks.

Step Five

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:

Step Six

Wait 32 days from the date the order was made. The date will be shown on the first page of the order.

Step Seven

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 forms of Notice of 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.

Free services

The Salvation Army's pro bono program and Access Pro Bono offer free meetings with lawyers who can review your forms with you before you file them in court. In some cases, the Salvation Army may also be able to prepare your documents for you. Although the lawyers available through these programs 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 the Desk Order Divorce Manual, which has samples of the different clauses you may need to complete your court forms. This book will be available at your local courthouse library.

Services that are not free

Lawyers

You're usually best off if you hire a lawyer to handle your divorce for you, as your 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 $500 and $2,000 for your divorce, plus the lawyer's out-of-pocket expenses for things like court fees and photocopying.

Commercial services

A local company called Self-Counsel Press publishes a kit for the desk order divorce process. The kit, which costs something like $25 to $35, contains all the forms necessary to apply for a desk order divorce, plus instructions on how to make the application. Make sure that the kit you buy has forms that are current to the changes made on 18 March 2013.

There are a number of commercial services available online that will prepare all of the necessary documents for you, including:

• http://www.divorceoptions.ca
• http://www.untietheknot.ca
• http://www.britishcolumbiadivorce.ca

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 are 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:

• Sole Application: the respondent files a Response to Family Claim or a Counterclaim; or,
• Joint Application: a claimant withdraws from the process and files a Response to Family Claim or a Counterclaim.

In either situation, the divorce action will cease to qualify as an undefended family law case within the meaning of Rule 1-1(1) and cannot proceed as a desk order. The divorce action will continue like any other contested family law case and proceed to trial if a settlement cannot be reached.

Resources and links

Legislation

• Family Law Act
• Divorce Act
• Supreme Court Family Rules
• Federal Child Support Guidelines

Links

• Legal Services Society’s Family Law Website: Divorce
• Online Divorce Services:
  • DivorceOptions.ca
  • Untie The Knot Divorce Service
  • Canadian Divorce Online