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Difference between revisions of "Simple Divorce Procedure: Step by Step (3:VI)"
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Simple Divorce Procedure: Step by Step (3:VI) (view source)
Revision as of 19:50, 12 August 2021
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{{REVIEWED LSLAP | date= | {{REVIEWED LSLAP | date= August 12, 2021}} | ||
{{LSLAP Manual TOC|expanded = family}} | {{LSLAP Manual TOC|expanded = family}} | ||
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== A. Sole Application == | == A. Sole Application == | ||
'''Step 1:''' Collect all necessary documents: i.e. the marriage certificate, copies of court orders or agreements regarding | '''Step 1:''' Collect all necessary documents: i.e. the marriage certificate, copies of court orders or agreements regarding parenting time, access, and support of the children. | ||
'''Step 2:''' The client fills in the Notice of Family Claim and relevant schedules. | '''Step 2:''' The client fills in the Notice of Family Claim and relevant schedules. | ||
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'''Substitute Service:''' Evidence of efforts to find the respondent will be required before an order for substitute service can be granted. Some methods of finding the respondent are: | '''Substitute Service:''' Evidence of efforts to find the respondent will be required before an order for substitute 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 [http://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/road-safety-rules-and-consequences/contact Superintendent of Motor Vehicles] to see if any vehicles have been registered in their name. The client should ask whether any fees will be incurred before proceeding; | ||
* | *Asking the local police if they have any information on their whereabouts, although they are usually reluctant to help; | ||
* | *Using a credit bureau or collection agency; | ||
* | *Asking friends of the respondent about his current address; or | ||
* | *Searching on Google and social media sites such as Facebook. | ||
'''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 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. | ||
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'''Step 8:''' The claimant applies for the divorce order. This requires: | '''Step 8:''' The claimant applies for the divorce order. This requires: | ||
*a) | *a) A requisition in Form F35 requesting an order that the parties be divorced; | ||
*b) | *b) A draft of the order sought; | ||
*c) | *c) The original of the affidavit of service complete with all exhibits and any supplementary affidavits confirming the identification of the respondent; | ||
*d) | *d) A certificate of the registrar in Form F36; | ||
*e) | *e) A requisition requesting a search for any Response to Family Claim; | ||
*f) | *f) An affidavit, sworn within 30 days of the date on which the application is made, in support of the application (Form F38). This affidavit must be sworn after the time for the respondent to file a Response to Family Claim has expired (no earlier than one year after the date of separation if the ground of divorce is that the spouses have lived separate and apart for one year). Th affidavit include proof of the allegations made regarding the breakdown of the marriage or (in the case where the only ground of divorce is that the spouses have lived one year separate and apart) a sworn statement that the facts in the Notice of Family Claim are true; | ||
*g) | *g) A child support affidavit in Form F37, if there are children; and | ||
*h) | *h) The filing fee. | ||
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. | 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. | ||
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'''Step 3:''' One or both parties attend Court to apply for the divorce order. This requires: | '''Step 3:''' One or both parties attend Court to apply for the divorce order. This requires: | ||
*a) | *a) A requisition in Form F35 requesting an order that the parties be divorced; | ||
*b) | *b) A draft of the order sought; | ||
*c) | *c) A certificate of the registrar in Form F36; | ||
*d) | *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) | *e) A child support affidavit in Form F37, if there are children; and | ||
*f) | *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. | 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. | ||
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To comply with the requirements of this form of service, the client must forward service documents to the Consulate: | 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 | *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. | *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. | ||
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Under Rule 8-1 of the ''Supreme Court Family Rules'', a party may amend their 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): | Under Rule 8-1 of the ''Supreme Court Family Rules'', a party may amend their 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, 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. | ||
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Where an amended Notice of Family Claim or Counterclaim is served on an opposing party, that opposing party may amend the Response to Family Claim or Response to Counterclaim, as applicable. The opposing party may only do so if they have already delivered a Response to Family Claim or a Response to Counterclaim. In addition, the following conditions apply to the opposing party’s amendments: | Where an amended Notice of Family Claim or Counterclaim is served on an opposing party, that opposing party may amend the Response to Family Claim or Response to Counterclaim, as applicable. The opposing party may only do so if they have already delivered a Response to Family Claim or a Response to Counterclaim. In addition, the following conditions apply to the opposing party’s amendments: | ||
* | *The opposing party must amend the Response to Family Claim to Response to Counterclaim only with respect to any matter raised by the amendments to the Notice of Family Claim or Counterclaim; and | ||
* | *The period for filing and delivering an amended Response to Family Claim or a Response to Counterclaim to an amended Notice of Family Claim or amended Counterclaim 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 their original Response. | ||
== D. Contested Actions == | == 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 file a Response to Family Claim regarding access to children without a contested action ensuing, but a support or | 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 file a Response to Family Claim regarding access to children without a contested action ensuing, but a support or parenting time issue would definitely result in a contested action, and a considerable wait for trial. | ||
== E. “Quick” Divorces == | == 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 a Response to Family Claim. Both parties would then sign a waiver of appeal. However,waiving the waiting period will only speed up the procedure by a few weeks as the waiting period for appeal is 31 days. | 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 a Response to Family Claim. Both parties would then sign a waiver of appeal. However, waiving the waiting period will only speed up the procedure by a few weeks as the waiting period for appeal is 31 days. | ||
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 must 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. The courts tend not to consider pregnancy or ordinary remarriage to be “special circumstances.” | 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 must 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. The courts tend not to consider pregnancy or ordinary remarriage to be “special circumstances.” | ||
