Do-it-Yourself Divorce in B.C.

The Divorce Act makes it possible for many married couples in Canada to handle divorce proceedings themselves, without hiring lawyers to act on their behalf.

Requirements

Under the Divorce Act, marriage breakdown is the only admissible ground for divorce.

By law, a marriage has broken down if:

• you and your spouse have lived apart for one year and have decided your marriage has ended (you may begin divorce proceedings at any time after you have separated, but one year must elapse before a judge can grant a Divorce Order); or
• your spouse has committed adultery (sexual intercourse with someone other than you); or
• your spouse has been physically and/or mentally cruel to you.

If your situation qualifies as marriage breakdown, and either you or your spouse has resided in British Columbia for the past year, you may apply for a divorce in this province.

Two Types of Divorce

1. Joint Action

If you and your spouse agree to divorce, you may file a joint Writ of Summons - Family Law Proceeding (Form 127A) and a Statement of Claim - Family Law Proceeding (Form 128A). This means you are asking the court for a joint Divorce Order. To file a joint Writ of Summons and Statement of Claim, both spouses must be in agreement on all details including custody, access and support, and both spouses must sign the Writ of Summons and Statement of Claim.

2. Sole Action

Undefended Divorce

An undefended divorce is where one spouse (the plaintiff) is asking the other spouse (the defendant) for a divorce and the defendant does not dispute any of the details of the divorce action, such as custody, access, or support.

Defended Divorce

A defended divorce is where one spouse (the plaintiff) is asking the other spouse (the defendant) for a divorce and the defendant has disputed either the details of the relief in the divorce action or the divorce itself. If you are doing your own divorce and your spouse disputes the divorce action, you should consider seeking legal advice.

How To Begin A Do-it-yourself Divorce

You may wish to:

• Obtain a guide, available from most book and stationery stores. Court registries do not supply them. The guide provides step-by-step instructions on how to complete a do-it-yourself divorce.
  • Please note that the court registries' staff are not permitted to:
    • assist with preparing court forms
    • provide legal advice
  • Access the following web sites for information on the Rules of Court forms and general information related to divorces:
    • Court Services at http://www.ag.gov.bc.ca/courts/
    • The Courts of British Columbia at www.courts.gov.bc.ca particularly current Practice Directions
    • Family Justice at www.ag.gov.bc.ca/family-justice/law/sep_div/information.htm
• Consider seeing a lawyer if your situation does not seem to be covered by the divorce guide or if there is something in the information you do not understand.

Note:

If you are eligible, you may be able to speak to a lawyer at your local legal aid office. You can also get legal advice from a lawyer in private practice or through the Lawyer Referral Service at 1-800-663-1919, or at the Canadian Bar Association - Dial-A-Law lawyer referral website: www.dialalaw.org.

• Obtain your marriage certificate or a certified copy of your marriage registration by contacting the Department of Vital Statistics in the province you were married in. They will supply you with one for a fee. (The Department of Vital Statistics is listed in the provincial government blue pages of your telephone book and can give you addresses of all the Vital Statistics Offices across Canada, or visit BC's Vital Statistics Agency's website at: www.vs.gov.bc.ca/.)
  Note: a certificate issued by a church or the person who performed the wedding ceremony is not acceptable.
• If you were married outside Canada, contact the Supreme Court Registry nearest you to find out what is an acceptable proof of marriage.

You can file for a divorce even if you do not know the whereabouts of your spouse.

Starting a Divorce Action

Note:

The Writ of Summons and Statement of Claim referred to throughout this brochure are specifically for family law proceedings in Supreme Court and are different from the Writ of Summons and Statement of Claim used for all other Supreme Court proceedings.

• Complete, date and sign the Writ of Summons and Statement of Claim (must be typed or legibly printed) make three copies then take the original and copies to the nearest Supreme Court Registry, along with your marriage certificate or the certified copy of your marriage registration.
• The court registry staff will provide you a Registration of Divorce Proceedings Form to complete. This form is sent to the Central Registry of Divorce Proceedings in Ottawa. The Supreme Court Registry must receive clearance from Ottawa stating no other divorce files are open in your name before a Divorce Order can be granted.
• Pay the registry filing fee once registry staff have accepted the Writ of Summons and Statement of Claim for filing. You have now begun the divorce action.
• All Supreme Court registries are open Monday through Friday, 9:00 a.m. to 4:00 p.m., except holidays. (The court registry nearest you is listed under the Attorney General, Ministry of, Court Services, in the provincial government blue pages of your telephone book.)

Next Step - Serving the Writ of Summons and Statement of Claim

• If you have filed a Joint Action for Divorce, these documents do not need to be served.
• If you are the plaintiff, arrange for a copy of the Writ of Summons and Statement of Claim to be served on your spouse by having someone other than yourself give a copy of these documents to your spouse in person.
• Private process servers can do this for you. Consult the yellow pages of your telephone book for a list of process servers in your area.
• The server must provide you with a sworn affidavit of service and you must file the affidavit with the court.

Unable to Locate Your Spouse

Time Limits

Time Limits for Filing an Appearance

Your spouse may file an Appearance and a Statement of Defence.

Time Limit for Filing an Appearance:

• 7 days if the Writ of Summons has been served in BC;
• 21 days if the Writ of Summons has been served elsewhere in Canada;
• 28 days if the Writ of Summons has been served in the U.S.;
• 42 days if the Writ of Summons has been served anywhere else in the world.

Time Limit for Filing a Statement of Defence:

• Where a defendant has entered an appearance the defendant shall file and deliver a statement of defence and any counterclaim to the plaintiff within 14 days from the time limited for appearance or from the delivery of the statement of claim, whichever is later.

Defended Divorce

If your spouse files an Appearance and Statement of Defence to your Writ of Summons and Statement of Claim, it means the divorce action is defended and you may be required to appear in court.

If this happens, seek legal advice. It may no longer be advisable to complete divorce proceedings on your own.

Undefended Divorce

If your spouse does not file an Appearance and/or Statement of Defence, then your divorce is undefended.

This means that neither party wishes to dispute such issues as custody and/or access to children, financial support or division of family assets.

Application for Divorce Order

You can obtain a Divorce Order in an undefended divorce or joint application divorce without appearing in court. However, you must file some additional documents with the Supreme Court Registry. These forms are contained in the divorce guide. Consult the guide for detailed step-by-step instructions on how to complete these documents. There is a filing fee for this application. Seek legal advice if there is something in the material you do not understand.

In a joint divorce action, both spouses must file pursuant to Supreme Court Rule 60(25):

• A form called a Requisition stating what you are asking for (i.e., that both spouses - party 1 and party 2 - be divorced from each other);
• A typed divorce order, this is the legal document to be signed by the judge and issued by the court that grants your divorce;
• An original Registrar’s Certificate of Pleadings noting that the pleadings and proceedings are in order;
• An Affidavit of one spouse (party 1) and an Affidavit of the other spouse (party 2) in Supreme Court Form 132 providing evidence in support of the application for divorce. The one year of separation must have elapsed before the affidavits are sworn. At least one of the affidavits must be sworn after the Writ of Summons and Statement of Claim have been accepted by the registry and within 30 days of filing the application for divorce;
• A Child Support Affidavit, (Supreme Court Form 133) if you have child(ren) (regardless if child support has been dealt with or no order for support is being asked for).

Sole plaintiffs in an undefended divorce must file:

• A form called a Requisition stating what you are asking for (i.e., that the plaintiff/defendant be divorced from each other);
• A typed divorce order, this is the legal document to be signed by the judge and issued by the court that grants your divorce;
• A proof of service (an Affidavit of Service) of the Writ of Summons and Statement of Claim;
• A Requisition Searching for an Appearance and Statement of Defence indicating you have allowed sufficient time for your spouse to defend the divorce action;
• An original Registrar’s Certificate of Pleadings noting that the pleadings and proceedings are in order;
• An Affidavit (Supreme Court Form 132);
• The Affidavit:
  • cannot be sworn until after the expiration of the time for filing the statement of defence
  • must be sworn not less than 1 year after the date of separation
  • must be sworn within 30 days of the date on which the application for judgment (divorce) is filed in the registry
• A Child Support Affidavit (Supreme Court Form 133), if you have child(ren) (regardless if child support has been dealt with or no order for child support is being asked for.)

The Final Stages

The length of time it takes to receive your divorce depends largely on the circumstances of your divorce action. It often takes from two to four months to process from start to finish.

Once the Supreme Court Registry has obtained clearance from the Central Registry of Divorce Proceedings in Ottawa, the application for the divorce order and other documents can be filed and the Supreme Court Registry staff will submit the application to the judge.

If the judge determines that you are entitled to a divorce, she or he will grant you a divorce order. Your divorce is automatically final 31 days after the divorce order is granted if no appeal is filed.

After you have obtained an entered divorce order from the registry, you are required to promptly deliver (mail) this order to your spouse at their address or their lawyer's address for delivery.

If you require a certified copy of the divorce order you must complete a requisition and submit it to the court registry along with payment. A certified copy may be required if you wish to enforce any of the terms of the divorce order.

Applying for a Certificate of Divorce

Once your divorce order is final you may apply for a Certificate of Divorce by filing a requisition requesting a Certificate of Divorce and pay the required fee.

Change of Name

A court order is not necessary if you wish to revert back to your maiden surname. (In most cases, new identification will be issued by Vital Statistics upon production of your birth certificate and divorce certificate.)

If an order is required for you to revert back to your maiden surname or if you wish to change your name to something other than your birth name you may apply:

Costs

You will be required to pay fees for filing your writ of summons and applying for a divorce order. There are additional fees for the swearing of each affidavit, to obtain a certified divorce order, or certificate of divorce and to change your name.

You must pay fees in cash, debit card (in most registries), or by money order or certified cheque payable to the Minister of Finance.

Personal cheques are acceptable provided that they are personalized (current name, address and telephone number), two pieces of approved identification (drivers licence, BC ID card, passport, citizenship card) and secondary identification.

These fees are in addition to the costs of forms and the fees of lawyers and private process servers.

For more information ...

If you or your spouse is seeking a child support order under the Divorce Act or the Family Relations Act, the child support guidelines will apply. To obtain information on the child support guidelines and to order free child support publications, call toll free:

• BC Child Support InfoLine at
  1-888-216-2211
  or in the Lower Mainland: 604-660-2192
• Department of Justice Canada at
  1-888-373-2222

Parenting After Separation is a three-hour information session for parents sponsored by the BC Government to help families make decisions that are in the best interest of their children. Call Enquiry BC for the phone number of your local Family Justice Centre that can help you find the session closest to you.

Family Justice Counsellors provide family dispute resolution services for child custody, access and maintenance issues and can also explain how the child support guidelines work. To speak to a counsellor, call the Family Justice Centre nearest you.

Ministry of Employment and Income Assistance can provide information about child support if you are applying for or receiving BC Benefits. For an office near you contact Enquiry BC at 1-800-663-7867, or visit the Ministry's website.

If Your marriage Breaks Up: Dealing with the Legal Problems [548KB] (produced by Legal Services Society with funding assistance from the Department of Justice Canada). This is a general information pamphlet available from the Legal Services Society or through the BC Child Support InfoLine.

Enquiry BC

This service will connect you toll free to Family Justice Centres, Parenting After Separation programs or any provincial government department.

Vancouver 604 660-2421
Victoria 250 387-6121
Toll free in the rest of BC 1-800-663-7867

Updated: November 14, 2006