There are three grounds for divorce in Canada:
1. Living separate and apart for one year.
This is the most common ground for a divorce order; a separation starts when one spouse clearly
communicates to the other that he or she wants to separate from the other spouse. It is not necessary (and often not financially feasible) to live in separate residences immediately after separation. If you can manage to live in the same residence with your spouse, after one of you has clearly stated his or her intention to separate, you may be better able to plan how you will share parenting responsibilities, organize your finances and choose the best process to resolve issues arising from your separation.
2. Adultery.
This is not a common ground for divorce, as the adultery must be proved to the court, adding to the cost of obtaining a divorce. Some spouses who have committed adultery, namely had sex with one person while married to another, may be willing to swear an affidavit admitting to their adultery. An affidavit is evidence under oath in written form. If the adultery is not admitted by the spouse who committed the adultery, other witnesses must give sworn evidence regarding the adultery. Under BC law, spousal misconduct, such as adultery has no relevance to the issues of property division and spousal support.
3. Physical and/or mental cruelty.
These are not common grounds for divorce. Like adultery, cruelty must be proved for the court, adding to the cost. The cruelty must not be minor, but so bad as to make continued cohabitation with your spouse intolerable. Spousal misconduct, such as cruelty, has no bearing on the division of property under BC law. It may be very relevant to parenting issues. If a relationship was violent or abusive, a professional should be consulted regarding protection of the abused spouse and any children of the relationship, and any ongoing concerns about parenting.
Practical Tips:
1. Avoid a “joint” claim for a divorce order. A “joint” claim is often attractive to people who separated rather amicably and when neither wants to “sue” the other for a divorce. However, a joint claim for divorce can be cumbersome. Both parties must either draft and sign the court documents, or provide joint instructions to the lawyer making the application. A “sole” claim by one spouse may be more straightforward. The other spouse can cooperate in accepting service of court documents and splitting the cost of obtaining a divorce order.
2. A Notice of Family Claim (sole application) or a Notice of Joint Family Claim (joint application) must be filed to claim an order for divorce. If you read any materials that suggest a Petition or a Writ of Claim is needed, the materials pre-date the changes to the Supreme Court Family Rules on July 1, 2010. You should seek legal advice regarding the court rules and forms required to obtain a divorce order.
3. Only a judge of the Supreme Court of British Columbia can make an order for divorce in BC. You cannot make a divorce application in the Provincial Court of British Columbia.
4. A little planning can lower costs and stress. If you separated some years ago, and wish to re-marry, begin the
application for a divorce well in advance of your next wedding date. Obtaining a divorce order takes approximately 4 to 6 months. In most cases, a divorce order becomes effective 31 days after it is made; the spouses are only then free to re-marry. If you re-marry outside BC, you may also need to obtain a Certificate of Divorce from the court registry that granted your divorce order; such certificates are not necessary to re-marry in BC.
5. A government issued marriage certificate must be filed with a divorce application. If you were married in Canada, you can obtain a marriage certificate from the province or territory in which you were married. If you were married outside Canada, it may take some time to obtain the needed certificate. A certificate from a religious official is not sufficient; you need a government issued marriage certificate. In some cases, it is impossible to obtain a marriage certificate, and such circumstances must be set out in the divorce application. For most provinces, marriage certificates can be ordered online with a credit card. For marriages in BC, certificates can be ordered at the Vital Statistics Agency website: https://www2.gov.bc.ca/gov/content/life-events/marriage/marriage-certificates.
6. Personal service of the Notice of Family Claim filed by one spouse must be made on the
other spouse. The spouse who filed the claim cannot serve the other spouse; a third party must serve the document. In most cases, you need a clear photograph of your spouse to provide to the person serving the court document.
7. To file a claim for divorce in BC, one spouse needs to be ordinarily resident in BC for one year.
8. Divorce applications are completed in two stages. In the first stage, the claim for divorce is filed at the court registry and served on the other spouse. After the required time for the other spouse to file a reply expires, the second stage may be completed. In this stage, affidavits regarding the grounds for divorce and child support are filed. If the application is abandoned after the first stage, no divorce order will be made.
9. Only one divorce application can be made and finalized in Canada. If an application for a divorce is made in one province, but not completed, a second application cannot be completed in another province without withdrawing the first application. The Central Registry of Divorce Proceedings tracks divorce applications made in the different provinces. If you believe that a divorce application may have been made and then abandoned by either you or your spouse, you should seek legal advice to obtain a divorce order.
© 2019 Karen Henry, LLB. karenhenrylaw@shaw.ca
Lawyer, West Coast Family Law Centre, 1179 Fort Street, Victoria, BC, Canada, V8V 3L1
Disclaimer: The above information is given as information only and is not given as legal advice.
Do not rely on this information as advice for your specific circumstances. Talk to a lawyer who specializes in family law about the specific facts of your circumstances to get advice on how the law applies to you.