Getting a Divorce in British Columbia

In British Columbia, spouses can file applications in Provincial Court regarding any issues aside from property division, debt division, and divorce. Divorce is governed by the federal Divorce Act, which sets out the legal requirements for obtaining a divorce, such as residency requirements and grounds for divorce.

If either of the spouses has resided in British Columbia for at least one year, either of the spouses can commence divorce proceedings in British Columbia by filing a Notice of Family Claim in the BC Supreme Court. The Notice of Family Claim must confirm that the marriage has broken down irretrievably and there is no reasonable prospect of reconciliation. The most common ground for divorce under the Divorce Act is a period of separation that has lasted for at least 12 consecutive months.

Determining the date of separation can be complicated because it isn’t necessarily the date that the spouses began living in separate households. The date of separation is generally the date that either of the parties expressed an intention to end the relationship, with no further mutual attempts to reconcile. If there is a dispute about the date of separation, there are several factors the courts will consider, such as whether one of the spouses began sleeping in a separate bedroom or if the spouses stopped acting like a couple in social interactions. A divorce may be granted prior to one year after separation if either of the spouses can prove that the other has committed adultery during the marriage or has “treated him or her with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.”

If both spouses have reached an agreement about all of their marital issues, such as how to divide their assets and debts; spousal support; child support; and parenting arrangements (if applicable), then the spouses can either confirm their agreement in a signed Separation Agreement, or they can ask the court to grant orders that the spouses agree to. If the spouses sign a Separation Agreement, an original signed copy of the agreement will need to be filed in the BC Supreme Court with the Notice of Family Claim (in Form F4) or Notice of Joint Family Claim (in Form F1). If any issues remain in dispute, one of the spouses will need to file a Notice of Family Claim, which will outline all of his or her potential claims.

Once one spouse files the Notice of Family Claim, the other spouse will need be personally served with a filed copy. The spouse that is served with the Notice of Family Claim will be required to file a Response to Family Claim within 30 days of being served. The responding spouse may also wish to file a Counterclaim, in which case, the other spouse will need to file and serve a Response to Counterclaim. These court forms are referred to as “pleadings,” and the court may require proof that these pleadings were properly served pursuant to the Supreme Court Family Rules.

It is relatively common for spouses to require more time to file their pleadings, but it is important to request and confirm an extension in writing, whether to your spouse or to his or her lawyer. If either spouse chooses not to file the required pleadings, the other spouse may be able to proceed in court and obtain orders in his or her spouse’s absence.

Although lawyers tend to be expensive, it is important to consult with an experienced family lawyer before filing any court pleadings because parties are only allowed to file one amended version of their pleadings if he or she wants to add, change, or remove their claims (or response to claims) for orders sought. For example, if a wife files a Notice of Family Claim seeking a divorce only and then later decides that she wants to seek spousal support, she can file an Amended Notice of Family Claim seeking spousal support and she will need to serve that filed document on her spouse. Her spouse will then need to file a Response to Amended Notice of Family Claim. If she later decides that she also wants to seek orders regarding the division of property, she will either require her spouse’s permission or permission from a judge before filing a third version seeking any additional orders.

To further complicate matters, the information included in pleadings about the spousal relationship, such as the date of cohabitation or date separation, may be considered an “admission.” Admissions made in court pleadings or petitions cannot be changed (not even once) without the consent of the other spouse or permission from a judge. Confirming an incorrect date of cohabitation or incorrect date of separation in a court pleading can have drastic consequences, so it is imperative that a family lawyer ensures that this information is correct before filing your pleadings.