How do I get a divorce in British Columbia?

How do I get a divorce in British Columbia?

Well, are you married? You must first be married to get a divorce. If you have been in a common law relationship, there is no need to obtain a court order to be separated. Please note that in British Columbia for purposes of the Family Law Act, you become common law spouses once you have been living in a marriage-like relationship for two years. [Please note that the length of time you need to be cohabiting in a marriage-like relationship to be considered common law is different under different statutes. Under the Income Tax Act, you are common law if cohabiting for one year.]

In Canada, there are different grounds on which you may divorce. The most common ground is being separated for one year. The other grounds are mental and physical cruelty or adultery, which do not require waiting a year before you can apply for the divorce order.

Assuming you are married and wish to proceed on the basis of one year of separation, the moment one party expresses to the other and makes obvious his or her intention to separate, that is when you are considered separated. It does not matter if the other party agrees. However, to be separated, you must start living separate lives, even if it is in the same home. For example, you should be preparing your own meals, sleeping in separate beds, spending leisure time separate from your spouse and generally be living separate lives.

To apply for divorce, you must apply to the British Columbia Supreme Court.

What if my spouse and I were married outside of Canada?

No problem! So long as you were married in the other jurisdiction and can obtain the original marriage certificate or that jurisdiction’s version of a marriage certificate, you can commence divorce proceedings in British Columbia. For example, those married in South Korea would need to obtain an original Family Census Registry Certificate or a Marriage Certificate from the Korean consulate in Vancouver. There is one other condition you must meet before you can file / commence divorce proceedings and that is you must be living in the jurisdiction in which you are filing for one year.

Does my immigration status matter?

No, you can apply for a divorce order even if you are not a permanent resident of Canada. So long as you meet the requirements of living for one year in the jurisdiction / province in which you wish to apply and have an original marriage certificate or its equivalent, that is all that is required to apply.

What if I was sponsored by my spouse for my permanent residency?

While this raises other complicated legal issues, it does not affect either party’s ability to get a divorce in Canada.

How do I apply for divorce?

You need to file court documents in the Supreme Court of British Columbia, a registry that is closest to where your children reside. If there are no children, then it is the closest Supreme Court Registry where you reside. The court documents that you need to file is a Notice of Family Claim (or possibly Joint Notice of Family Claim), a divorce registration form, and the marriage certificate (or its equivalent). If the marriage certificate or its equivalent is in a language that is not English, then the document needs to be translated and appended to an affidavit for filing. The divorce registration form registers at the Divorce Registry in Ottawa that a divorce proceeding was commenced in British Columbia.

Assuming that you’ve filed a Notice of Family Claim (and not a Joint Notice of Family Claim), the filed copy must be served on the other side. Contact us to find out which document is the best way to proceed.

Please note that once the original marriage certificate is filed, you will not get the original back. Once filed, it is filed forever.

What if my spouse and I have settled everything and just want a divorce order?

That is great news! It is generally better to settle than fight. However, in order to make sure that you are settling on terms that are fair to both parties, we always recommend that you get legal advice first. Assuming that you’ve settled on reasonable terms, there are certain court documents that must be filed and served (assuming that you are not proceeding with a Joint Notice of Family Claim). We recommend that you obtain proper legal advice to find how best to proceed, especially if you intend to obtain the divorce order by way of a desk order and there are children involved. A desk order divorce is one where one obtains a divorce order by filing court documents. It is fraught with mines and pitfalls, which you can avoid if you know which documents to file and how to proceed.

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Susan Kim

Susan has successfully litigated family law, commercial, estate and civil cases in Provincial Court, Supreme Court, Federal Court and the Court of Appeal for over 20 years.

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