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This chapter will provide an overview of the grounds for divorce, and discuss the nature of a divorce order and the effect of foreign divorce orders in Canada. It will also review the do-it-yourself divorce process, and the court forms used in that process, in enough detail that you can get your own divorce. The criteria which must be met to obtain an annulment, which isn't nearly as easy as most people think, is discussed in the Marriage & Divorce > Marriage chapter in the segments on Void Marriages and Voidable Marriages. 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:
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 ground of divorce has nothing at all to do with the court's consideration of issues like custody, guardianship, access, child support, spousal support and the division of the family assets. No matter how upset someone is by their spouse's adultery, for example, they will not receive more spousal support or a greater share of the assets because of it. The Supreme Court of Canada's 2006 decision in Leskun v. Leskun confirmed this general rule. 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 your learn of the adultery or experience the cruelty, you must be able to prove that the other spouse commited 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 an action has dragged on long enough 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 (particularly in the case of adultery) and will grant the divorce instead on the ground of 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 aspects 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 more than 90 days with the intention of getting back together, the one year period will not start running until after the couple breaks up again. Adultery The party claiming that the other spouse is guilty of adultery must prove this claim in court. Before the court will pronounce the order for divorce, it also must be satsified that the party making the claim has not conspired to arrange the adultery, condoned the adultery or connived to achieve the adultery or the divorce will not be granted. Proof of adultery normally consists of an Affidavit from either your spouse or the person with whom he or she 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 The party 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 order, it must also be satsified 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 the 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 divorce, the court will not grant a divorce 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 wrongful act, whether adultery or cruelty, has been forgiven by the victimized spouse. 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 defraud 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 spouse to have sex with someone else in order to claim adultery as a ground of divorce. Connivance means to arrange for 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" means that child support is being paid pursuant 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. Back to the top of this chapter. The Divorce Order In order to get a divorce order, the court must be satisfied that:
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. 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 the children, child support, spousal support and the division of property. 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. Regardless of how these issues were dealt with, all orders for divorce must state that "this order shall not take effect until the 31st day after its pronouncement." This to allow the appeal period to expire. Once those thirty-one days have passed, however, the parties are officially divorced and are free to remarry if they wish. It is possible to waive this appeal period, if the divorce must take effect sooner for some urgent reason, typically remarriage. If this is the case, the court should be advised of the need for haste, and a waiver of appeal will have to be filed. 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 lawyers take care to prepare Certificates of Divorce nicely, in a format suitable for framing. A sample divorce order and Certificate of Divorce are supplied below in the segment on the desk order divorce process. Back to the top of this chapter. 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. Of course, there is a small catch. Either spouse must have been "ordinarily resident" in that country for at least one year before divorce proceedings started in that country. 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 accept the fact that a spouse is divorced. Whether the divorce meets Canadian requirements will only ever become an issue if the other spouse claims that the divorce is not valid, and that's something that rarely happens. Back to the top of this chapter. The Do-It-Yourself Divorce The only way to obtain an order for divorce is by starting a law suit; you must sue your spouse if you want to get divorced. The do-it-yourself process, properly called the "desk order" divorce process, allows you to obtain a final order for divorce without every having to appear in court, and the order can deal with all of the issues between you and your spouse, from the division of property to child support. The desk order divorce process will allow you to get your divorce yourself, 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 forms and complete the process on your own. Generally speaking, a desk order divorce is appropriate in two situations:
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, relief apart from the divorce order itself, such as orders dealing with care and control of children, support or the division of assets. Most law suits go like this: the Plaintiff files a Writ of Summons and Statement of Claim and serves them on the Defendant; the Defendant then files an Appearance and, later, a Statement of Defence and sometimes a Counterclaim. If the Defendant fails to file a Statement of Defence, the Plaintiff's claim is said to be uncontested, meaning that the Defendant is considered to either agree with the relief sought by the Plaintiff or has chosen not to defend the Plaintiff's claim. In such circumstances, the Plaintiff is free to seek a default judgment against the Defendant. A desk order application is essentially an application for a default judgment, whether the Plaintiff's claim is for a divorce order alone or for a divorce order with orders about other, corollary issues. There are two types of desk order divorce actions:
Both types of action essentially seek a default judgment. There are four main differences between sole applications and joint applications:
The Sole Divorce Application This segment offers a quick sketch of the sole divorce application process. Samples of the court forms required are available at the end of this segment. Templates of these forms, in Microsoft Word format, are available in the Resources & Links section of this website. The Process in a Nutshell The following instructions are for the sole divorce application process. Step One Prepare your Writ of Summons and Statement of Claim. Sign and date them. Make three copies of the original. Step Two Go to your local registry of the British Columbia Supreme Court. Bring the original Writ and Statement of Claim, the three copies 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 and pay the $218.00 court fee. The court will stamp the action number and the court seal on all copies of your Writ and Statement of 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 Writ and Statement of 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 Writ and Statement of 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 Service to prove that your ex was served. Step Four Once your ex is served, wait thirty days. Step Five Prepare your Requisition asking the court for the divorce order, your Affidavit in support of the application, your draft of the order you want the court to make and the Registrar's Certificate of Pleadings. If you have children, you will also have to prepare a Child Support Affidavit, which sets out the financial 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 of Pleadings, your draft order and your process server's Affidavit of Service. Pay the $62.00 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 six 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 thirty-one 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 thirty-one days from the date the 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 $31.00 court fee, and grab a chair. The registry will normally complete your Certificate of Divorce while you wait. Sample Documents The links below will open examples of all the court forms required for a simple desk order divorce in new window. Note that these forms are for the sole divorce process. Slightly different forms (Form 127A and Form 128A) are used for the Writ of Summons and Statement of Claim in joint divorce proceedings; those are reproduced below in the segment on the joint divorce process. Blank forms for the sole divorce process are available for download at the Legal Services Society's Family Law website. You will require Adobe Acrobat Reader to view these files listed below, a free program available for download from Adobe Software. A few notes about these sample forms and completing your own:
In this first batch of sample forms, our fictitious Plaintiff, Jane Doe, is suing her husband, John Doe, for a divorce alone using the sole application process. There are no children, and the ground of divorce Jane is relying on is separation for period of at least one year. Neither Jane nor John have middle names. Areas where the court form offers a choice or where you must supply information are indicated in burgundy text.
If Jane and John had children, some of these forms would look a lot different, and a new form, a Child Support Affidavit, would be required. In the following sample forms, Jane and John have two children. Jane is asking for an order that John pay child support and that they share joint custody and joint guardianship of their children, with the terms of joint guardianship spelled out on the Joyce model.
These sample documents are just that: samples. While they represent a more or less accurate picture of how Jane Doe might fill out her forms, they may not be applicable to your situation. Use them only as a reference, together with the official court forms. The one other form you will need is an Affidavit of Service. This is the affidavit which contains the evidence proving that the Defendant was served with the Plaintiff's Writ of Summons and Statement of Claim. This affidavit is not a prescribed court form, but the usual sort of affidavit which says "Affidavit of Service" as the title of the document instead of "Affidavit." The Affidavit of Service must say:
The forms listed above are also available for download, in Microsoft Word format, in the Resources & Links section. The chapter The Legal System > Starting an Action offers a more complicated sample Writ of Summons and Statement of Claim in which claims are made for more than just for a divorce alone, including claims for spousal support and the division of property. 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 six weeks in total. These are the main differences between the joint application process and the sole application process:
The Process in a Nutshell The following instructions are for the joint divorce application process. Samples of the court forms required are available at the end of this segment. Templates of these forms, in Microsoft Word format, are available in the Resources & Links section. Step One Prepare your Joint Writ of Summons and Joint Statement of Claim. Both of you must sign and date each document. Prepare and execute one Affidavit in support of the application, prepare your blank Registrar's Certificate of Pleadings, 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 Affidavit in support of the application. 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 $280.00 court fee. The court will stamp the action number and the court seal on all copies of your Joint Writ and Joint Statement of 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 $31.00 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 six 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 thirty-one 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 thirty-one days from the date the order was made. The date will be shown on the first page of the order. Step Seven 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 $31.00 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 Writ of Summons and Statement of Claim, all of the forms used in the joint process are the same as the sole process, except that the parties aren't called Plaintiff and Defendant, they're called Party 1 and Party 2. Sample Documents The links below will open examples of the two special court forms required for a simple desk order divorce in new window. Note that these forms are for the joint divorce process. All of the other required forms are identical to those used in the sole divorce process, and samples of those are available above. You should also have a look at those sample documents for examples of how the forms should be completed when children are involved. Blank forms for the joint divorce process are available for download at the Legal Services Society's Family Law website. You will require Adobe Acrobat Reader to view these files listed below, a free program available for download from Adobe Software. In these sample forms, our fictitious parties, Jane Doe and John Doe are seeking an order for a divorce alone using the joint application process. There are no children, and the ground of divorce the parties are relying on is separation for period of at least one year. Neither Jane nor John have middle names. Areas where the court form offers a choice or where you must supply information are indicated in burgundy text.
These sample documents are just that: samples. While they represent a more or less accurate picture of how Jane and John Doe might fill out their forms, they may not be applicable to your situation. Use them only as a reference, together with the official court forms. Free Services The Salvation Army's pro bono program and the Access Justice Society offer free meetings with lawyers who can review your forms with you before you file them in court. In some cases, the Salvation Army will also prepare your documents for you. The lawyers these programs offer are not likely to prepare your documents, but they will give them a check to make sure that the registry will accept them. The contact information for both organizations is listed in the Resources & Links section. Also, 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's law library. Using a Lawyer You are always best off if you hire a lawyer to handle your divorce for you, as your lawyer will be familiar with the nuances and complications with 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 $750.00 and $2,000.00 for your desk order divorce depending on whether there are children or not, plus the lawyer's out-of-pocket expenses for things like filing 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 $25.00 to $35.00, contains all the forms necessary to apply for a desk order divorce, plus instructions on how to make the application. There are a number of commercial services available online that will prepare all of the necessary documents for you, including: If I understand things correctly, untietheknot.ca will also file your documents in court for you. An Google search for the phrase "desk order divorce BC" should provide you with a other few options, but whatever you do, make sure you're using a service which offers the forms required for a divorce in British Columbia! Back to the top of this chapter. Site Navigation
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