How To File For Divorce in BC: An Introduction
According to Statistics Canada, the divorce rate in British Columbia is around 40%. The road ahead may seem daunting if you and/or your spouse have decided to divorce. With the proper legal counsel, you can still navigate it and come out on the other side.
A BC divorce lawyer can help you resolve disputed issues without the delays and costs of a court trial. The majority of divorces in British Columbia (80%) involve couples without children. However, if you have children, you can rest assured that any decisions made are in their best interests as well as yours.
The truth is that most divorcing couples do not fully understand what the divorce process entails. In addition to being emotionally unstable, they are quite often woefully unprepared for the complicated process that lies ahead.
This might cause them to make snap judgments that are not in their best long-term interests. Couples may become embroiled in an even more acrimonious battle under these conditions that could have been avoided with the help of competent legal representation.
This guide will inform you about the process to help you avoid many of the common mistakes that many couples make. Our goal is to assist you in preparing for your new future while minimizing the errors and stressful situations that bad divorce cases can cause.
Overview of the Divorce Process in BC
Divorce in British Columbia is, fortunately, a straightforward process with two main stages.
- Stage 1:
The first stage consists of filing the divorce claim, also known as the "Notice of Family Claim," at the Supreme Court of British Columbia, which is followed by service of the divorce claim.
A Financial Statement that details the financial situation of both spouses must also be submitted with the application.
The service entails personally delivering to the other party in the marriage a copy of the divorce claim that was filed in court. This ensures that he or she is aware that his or her ex has filed for divorce.
- Stage 2:
The second stage entails waiting for the other spouse, the one who did not file for divorce, to respond. A request for an order of divorce is filed if no response or counterclaim is submitted in the allotted 30 days.
Depending on the court's processing times, a divorce can be obtained in as little as 3 to 4 months.
Understanding the Grounds for Divorce in BC
Only a few legal justifications—referred to as "grounds"—are recognized in British Columbia for divorce. In your divorce application to the Supreme Court, you must be able to demonstrate that you meet one of these requirements.
Proving the breakdown of a marriage in BC
In BC, a divorce may be granted if a marriage has broken down and there is no chance to salvage it. In addition, to file for the divorce, one of the spouses must have lived in the province for at least one year prior to the filing date.
Practically speaking, the only grounds for divorce in BC is the breakdown of the marriage. Even though adultery and cruelty are grounds for divorce, the marriage is still regarded as broken.
Preparing the Required Documents
You'll need the following:
- your original marriage certificate.
- If necessary, money to pay a translator to translate your marriage certificate into English.
- a copy of your divorce decree or court order (s).
- If necessary, your certificate of name change.
Filing for Divorce in BC
A legally married couple must file an application with the Supreme Court of British Columbia to obtain a divorce. If a couple is divorcing with children, a divorce order will not be issued until the parties reach an agreement on appropriate child support payments.
Serving the Divorce Papers
Before processing your application, British Columbia requires that you inform your spouse of the divorce proceedings. Serving the divorce papers on your spouse enables him or her to reply to the court and guarantees that everyone is treated equally.
You are permitted to serve the divorce papers in British Columbia using standard delivery. Ordinary service requires you to personally deliver the divorce decree to your spouse's address rather than mailing it.
If your spouse contests any part of the divorce, they must do so in court after the papers have been served. The divorce will proceed after the divorce papers have been served and the court has been informed.
Resolving Division of Property
Property is classified into two types:
- Family Property
- Excluded Property
Family Property
Unless the couple has a different agreement, all family property is divided equally when spouses divorce. Everything that you or your spouse owned on the date of your separation falls under the definition of family property. It is irrelevant whose name the family property is registered in.
Family property consists of:
- The family residence.
- RRSPs.
- Investments.
- Accounts in a bank.
- Insurance coverage.
- Pensions.
- An interest in a company.
- The amount of any increase in the value of excluded property since the beginning of the relationship.
Excluded Property
Among the excluded properties are:
- Property owned by one spouse prior to the start of the relationship.
- During the relationship, one spouse received gifts and inheritances.
- Damage awards, insurance proceeds, and trust property are examples of damage awards.
However, if the value of excluded property increases during the relationship, the increase is considered family property and is divided equally. If dividing it equally would be "significantly unfair," the court will only divide family assets or debt inequitably.
Resolving Child Custody and Access
Family members rarely show up in court. Even when a court case is initially filed, the majority of family cases never go to trial. Many families choose to resolve conflicts amicably on their own or in a mutually agreeable manner.
If a family is unable to come to an agreement, they can go to court and ask a judge to resolve matters such as:
- Which parenting styles are best for the kids.
- How to handle paying child and spousal support.
- How to divide debt and property.
The family must abide by the judge's orders, which are directives.
You might need to appear in court. For instance, the court might need to issue a protection order to shield one family member from another family member if there are concerns about family violence.
We advise speaking with a family justice counselor or an attorney who can inform you of your options before you decide to go to court.
Resolving Child Support Payments
Parents and guardians are required by law to provide for their children, regardless of whether they see or care for them.
The principle behind child support is that a child has the right to receive financial support from each parent equally, just as they would if the parents cohabited. Child support is a legal right of the child, even though it is only paid to one parent.
The federal government's child support guidelines are used to determine child support.
Child support arrangements need to be made if you're going through with a divorce. Without being convinced that suitable financial arrangements are in place for the children, the judge cannot grant your divorce.
Child Support Officers and Family Justice Counselors Can Be of Assistance
Child support officers and family justice counselors can:
- Help you understand the child support guidelines and determine how much you are owed or owed in terms of child support.
- Family justice counselors and child support officers can work with both of you to negotiate a child support amount if the other parent is on board.
To speak with a family justice counselor or child support officer, get in touch with the justice access center or family justice center that is closest to you.
Resolving Spousal Support Payments
Spousal support is decided in two steps:
- Determine whether you are eligible for spousal support.
- If you are entitled to spousal support, you can determine how much is reasonable and how long it should be paid.
Even if you are entitled to support, you may be denied spousal support due to other factors.
Determining Entitlement
Based on the objectives of spousal support, you are entitled to spousal support if there is a need for it.
The spousal support objectives take into account how a parent's ability to support themselves can be impacted by child care obligations. For instance, child care obligations may prevent one parent from working full-time or pursuing a career.
Spousal support may also compensate a spouse who foregoes opportunities in order to assist the other spouse in pursuing their own opportunities or career.
Spousal support may also be required to mitigate the economic hardship caused by the separation or to assist a spouse in becoming financially independent after the separation.
Finalizing the Divorce in BC
If no appeal is filed, a divorce is automatically final 31 days after the court grants a divorce order; remarriage can occur only after the 31-day period has passed.
Even if a couple agrees on the divorce, parenting arrangements, support, or property division, the court must grant the divorce. Couples in these situations can file for divorce jointly.
By filing jointly, the couple can jointly request an uncontested or undefended divorce (also known as a desk-order divorce) without having to serve the opposing party. In British Columbia, the majority of divorces (60%) are uncontested.
If the opposing spouse doesn't reply after being served with the application, the divorce can still proceed as uncontested or undefended in a sole application.
