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The Desk Order Divorce Process
Myself being the single Petioner of Divorce - once I register and file my divorce papers do I have a specific time limit to serve my spouse with the papers? Like within one week, one month etc? (by P of North Vancouver, BC) If I recall correctly, you should serve your spouse within a year of filing your divorce action. If you can't do that, there are a couple of steps you have to take to preserve the action; either way, your action won't die for want of service, but it will complicate things. It's best to serve your husband as soon as possible. Click here to go to the top of the page Once I have served my spouse the divorce papers, what would happen if he ignored them and did not respond to the document's instructions appropriately? Will my divorce be automatically granted? (by P of North Vancouver, BC) If your husband doesn't respond to your divorce papers, you're home free. Your divorce order won't be granted automatically, but you will be entitled to make an application for a default judgment. A default judgment is a final order of the court made when a defendant (like your husband) fails to reply to a claim which was properly served within the timelines set out in the Rules of Court. Remember: the default of reply is not enough. You must make an application for the default judgment. Click here to go to the top of the page I am doing my own divorce and still need help! Once I have registered and filed my divorce papers with the registry office - will they immediatley give the papers back to me to allow me to serve my spouse or is there a waiting period and do I have to go back at a later date to get them before they can be served? I understand there is a waiting period of a possible 8 weeks - does this pertain to the above question or is this the final waiting period once the spouse has replied to being served. (by P of North Vancouver, BC) First you file your Writ of Summons and Statement of Claim in the court registry. Bring along a minimum of three extra copies of these pleadings. After the registry has vetted your pleadings and you've paid the filing fee, the registry will stamp your copies and file the original. There is no waiting period. Next, you've got to have your husband served with a copy of the pleadings. That's when the first waiting period starts. You have to wait for 30 days after he's been served before you can go on to the next step. After the 30 days have passed, you can swear your affidavit in support of your application for a divorce order and file your application materials. Then the second waiting period starts. It usually takes 4 to 8 weeks for the court to make the divorce order. Once that's done, you're done! One last point about desk-order divorces: the book you've got probably tells you to get a "Certificate of Divorce" about 31 days after the divorce order is made. You don't need to. Your order for divorce is good enough and you certainly don't need to blow $31 on a certificate to celebrate the event. Click here to go to the top of the page What are the costs for filing for separation and divorce if you are doing it yourself? (by T of Port Coquitlam, BC) It will cost $218 to file your Writ and Statement of Claim. Perhaps another $50 for a process server to serve the entered Writ and Statement of Claim on your wife. Another $62 to file your application for the divorce order, plus maybe $50 to have the affidavit in support of your application notarized. Finally, you'll have to pay $31 to get your Certificate of Divorce. The self-counsel press book will tell you to get your Certificate, but quite frankly it's a waste of money and time. You don't actually need the Certificate. The order you will get is ample proof of your divorce. Click here to go to the top of the page If my spouse files for divorce and everything is done but, they refuse to send in the desk order what can I do to finalize the divorce? Do I have to file for sole divorce? (by A of Vancouver, BC) You can do something about it, but it's a pain in the butt. Assuming that your wife filed the application for divorce on her own (ie: it's not a joint application), but is now stalling, this is what you can do.
Before you do any of this, double-check with the court registry that they will accept a desk order divorce application done in this manner. Click here to go to the top of the page My spouse filed for divorce as a sole applicant over two years ago, but has not sent in the desk order. Is there any kind of time frame the initial action must be comlpeted by? What if any are the consequences of not completing the divorce action? (by A of Port Moody, BC) There aren't any consequences if no further steps are taken after the intial pleadings are filed... except, of course, the fact that you remain legally married. The action does not automatically die. After one year has passed with no steps being taken in the matter, however, if your spouse wants to get the ball rolling and get a divorce, your spouse must file a form called a "Notice of Intention to Proceed," serve it on you, and wait 31 days before proceeding to file the actual application for a divorce order. If you're tired of waiting, there is a solution. You can file a Statement of Defence and Counterclaim. Your Statement of Defenence won't likely oppose any of the relief claimed by your spouse, and your Counterclaim will likely only seek a divorce. The point of this is to give you the standing to seek the divorce; right now you have no claim of your own before the court, the only claim is that of your spouse. The down sides to this are that it'll cost you $208 to file these pleadings plus another $62 to make the divorce application, and you'll have to actually appear before a judge to get your divorce. Click here to go to the top of the page If a couple has been separated for over eight years and there are no children or assets to divide and one party cannot be located; how can the other party obtain a divorce? (by K of Cyberspace, BC) The answer to your question is fairly straightforward. You can still get the divorce you want using the desk-order divorce process. That's a fairly inexpensive method of getting a divorce without having to appear in front of a judge. This process is described in detail in the chapter "Marriage & Divorce > Divorce" on my website. The only down side for you is that you don't know where your ex is. To get your divorce, you will first have to apply for an order allowing you to serve your husband with your legal documents in a manner other than that provided for by the rules of court. That's a bit complex, but I deal with that issue in the "How do I ?" section of my website. Click here to go to the top of the page I was granted a divorce in BC about two years ago. Recently my ex contacted me, he lives overseas, and requested a divorce certificate. At the time of the divorce I didn't pick up my divorce order. Is it too late to pick it up normally or is there now a different process to go though? Did I mess up the finalization by not picking up my order in a timely way? (by M of Vancouver, BC) Don't worry, your divorce order will still be available at the Supreme Court registry that you applied for your divorce. It might not be right at the family/divorce counter, like most divorce orders are, but it will be in your court file. All you have to do is go down to the courthouse with some photo ID and pick it up. Click here to go to the top of the page I have been separated from my wife for 13 months and wish to apply for a divorce. While she won't contest it, she will not start it on her own. My problem is I am currently out of the country. Can I start the proceedings without returning to BC? (by S of Cyberspace) Put simply, you probably can’t. The Divorce Act requires you to be “ordinarily resident” in the province in which you make your divorce application for at least one year before you commence the action. If your stay abroad is only temporary (ie: less than a year), and you make your permanent home in BC, then go right ahead and start your action. You should be able to get most of the forms you need on-line from the website of the Legal Services Society. Note that as you need to file your materials here, you’ll have to have a friend or paid agent file your papers for you. As well, since you must swear an affidavit in support of your application for the divorce order, the court may be concerned that you’re swearing your affidavit in another country; that’s something you’ll have to address in your affidavit to show that you are in fact “ordinarily resident” in BC. Click here to go to the top of the page I've been separated for 3 years now and I would like to file for an uncontested divorce but I can not seem to find my ex or any of his relatives and besides I not even have a picture of him. If I can not find him, will they still grant me the divorce? How do I know if he has already filed and the divorce is already effective? (by M of Vancouver, BC) Your situation isn't that bad! Start your action for divorce in the usual way. After you've filed your Writ of Summons and Statement of Claim, you'll then have to apply for an order giving you permission to serve your husband "substitutionally," in other words, an order that allows you to serve him in a way other than the usual way. Ask the court for an order allowing you to serve him by posting a copy of your materials in the registry of the court. That's the cheapest way to do it. This will add a delay of some thirty days to your divorce action, but it's the only way you can get the ball rolling if you don't know where he is. As to whether or not you're divorced already, call the central divorce registry in Ottawa. Information about the divorce registry and substitutional service is available in the "How do I ?" section of my website. Click here to go to the top of the page I know that I can not serve the papers on my husband, but can anyone else? Can it be a family member of mine or does it have to be someone else? (by K of Maple Ridge, BC) Anybody but you can serve the papers on your husband. They just have to be a legal adult and sane. A friend can certainly do it for you, so can a family member who isn't your child. Click here to go to the top of the page I was married in BC and have moved to Alberta. I have not lived in Alberta for one year yet so I understand I can't file here. I have had the documents done up to be filed in BC but my ex (who still resides in Vancouver) will not go to the court to file them. Can I give permission to a friend or family member to file them for me? I cannot go to Vancouver myself. (by A of Canmore, AB) I'm afraid that you can't file in BC regardless of whether you have a friend do it (which you can't) or not. If your husband won't get the divorce, it's up to you. The Divorce Act requires someone to have lived in a particular province for at least a year before they can start a divorce proceeding... you were fine in British Columbia until you left for Alberta. The point of this rule is so that the court has jursidiction over you to grant the divorce. You'll just have to wait until you've lived in Alberta for the year if your ex won't help you. Click here to go to the top of the page What to do when the desk order joint divorce application is rejected by a judge? A judge has rejected our desk order joint divorce application based on two reasons: 1. One spouse made comments about some "threats" received from the other spouse and it needs to be spoken. 2. The child support in relation to section 11(1)(6) must be satisifed. This is a joint application and the child support term was agreed upon by both parties. My question is what we do next? Should we both book an court appointment and appear in court to clarify? Are there any documents that we should prepare beforehand? There is no monthly payment mentioned in the Separation agreement regarding child support for 19 and 21 years old children while both of them going to universities, but there is a lump sum payment of $100,000 to each child, is this not enough to be in lieu of the monthly payment, about $800 a month. (by A of Vancouver, BC) When a desk order divorce application is rejected, the court usually notes on the rejection notice what needs to be fixed in the application materials to get the order you want. Often this is a matter of just fixing a document, and resubmitting the package. With respect to child support, it seems that you've amply looked after that. You probably need to change one of the affidavits you filed with your application to explain about the $100,000 and how this is "a division or transfer of property that directly and indirectly benefits the children" or "a special provision" that benefits the children. There's a link to the Divorce Act in my website, read ss. 11(1)(b) and 15.1(5)(a). Essentially, you need to show that the usual payment of child support doesn't need to be paid because you have made other arrangements that constitute a direct benefit to the children. I'm not sure at all what you mean about threats. If you and your wife are jointly seeking the divorce, there should be nothing in the materials before the court at all about "threats." If the claim is for a divorce based on cruelty, you cannot jointly ask for the divorce; only the "victim" can and he or she must use the sole application process. Again, you might be able to fix this by filing a Notice of Withdrawal of the claim for a divorce based on abuse, or by amending the Statement of Claim to claim only a divorce based on separation. Click here to go to the top of the page Site Navigation
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