British Columbia divorce details
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In British Columbia, as in any other province of Canada, there are 2 main directions of divorce: contested and uncontested. A contested divorce means different court sessions of varying complexity and duration. Such a divorce occurs when there is disagreement between spouses that they cannot resolve together, so the judge comes into play to find a solution. All disputes are discussed in the courtroom and the divorce will not be completed until all of them are resolved. Therefore, contested divorces take a lot of time and can last up to a year, and in some cases even longer. Duration depends on the complexity of all issues that have to be decided by the judge. Also, disputed divorces are usually expensive, since spouse's interests are represented by a lawyer in court.
Counterbalance is uncontested divorces. The spouses decide all their differences before the beginning of the court sessions and make a compromise. Such a divorce is also called "amicable" or “undefended”. Usually, it’s possible to get a final decision at the first hearing, and in some situations, the spouses do not even have to appear in the courtroom, the divorce is granted automatically. On average, such a divorce takes only a couple of months, and it is much cheaper than the contested because the participation of lawyers is not needed.
An uncontested divorce implies that both spouses agree to dissolve the marriage, and they are willing to cooperate. The essence of an amicable divorce is that the spouses simply have nothing to divide in the courtroom since they can resolve their disputes on their own. Thus, couples who wish to get an uncontested divorce should carefully consider the following questions and come to a decision that both spouses will agree on: grounds for divorce, division of common property and debt, separation of custody of common minor children, as well as the amount of financial support for the child and alimony. Any other controversial issues that may arise in the process of divorce must also be resolved. With this, an amicable divorce in British Columbia takes from 6 weeks to 4 months.
Divorce can only be granted for reasons established by Canadian law. Therefore, it is possible to terminate a marriage only if one of the following reasons is present:
Spouses live separate and apart. During the year before filing a lawsuit in court, the spouses must live separately and without cohabitation, while during this year a period of 90 days is allowed, when spouses can cohabit in order to improve relations. After 90 days, the spouses must again live separately in they still want to file for divorce. If a couple has lived together for more than 90 days, then to get a divorce, a pair must start the annual separation period anew.
If there is no possibility to live in different houses, the spouses can live under the same roof, but in different bedrooms and not cohabit.
Adultery. The Defendant committed an act of adultery on the side with which the Claimant completely disagrees and cannot forgive.
Mental or Physical cruelty. The Defendant shows aggression towards the Claimant, which does not allow the spouses to live as a full-fledged family.
On the basis of the reason on separation, spouses may receive an uncontested divorce, because it’s a no-fault reason and indicates that none of the spouses is blamed for the fact that the marriage is broken. Two other reasons are more serious and require the Plaintiff to provide the court with undeniable evidence of the Defendant’s guilt.
In order to get a divorce, spouses must meet the requirements for living. Thus one of the spouses must be a resident of British Columbia for at least one year prior to filing a lawsuit. It does not matter where the marriage was entered into, it could be made in another province or within Canada, the main thing is that British Columbia recognizes that marriage is legally binding.
The first step that spouses must take on the way to their divorce is to discuss all disputed issues and resolve differences. Before going to court, spouses must be sure that they have the same understanding of how they want to share common property and child custody, as well as agree on the amount of alimony and financial support for the child. Spouses should also enter into a written agreement regarding all the above issues. After that, the couple must fill out a Notice of Family Claim form and sue it with the court. The couple also should provide a marriage certificate. BC recommends that the spouses file the documents for divorce together, as this makes it possible to get the final decision faster. In the process of filing a lawsuit, it's also needed to pay an initial court fee of $200.
Recently, DIY divorce is very popular. A spouse who wants a divorce can pick up all the necessary papers and sue them by himself/herself, it is absolutely legal. The plaintiff has the full right to represent his/her interests in court without using the services of a lawyer. The province of BC provides all the necessary information regarding the steps to be taken on the way to dissolve the marriage. There are also various online services that help couples prepare the necessary package of documents. Therefore, Do-It-Yourself divorce is perfect if the spouses have no disputes. In case if a divorce is contested, it is better for the spouses to seek help from lawyers in order to resolve disputes as comfortably as possible.
When the plaintiff files a lawsuit, he or she is obliged to pay a court fee of $200, it is also worth considering the spouse’s serving, which will cost $40-60. So on average, the cost of an uncontested divorce in British Columbia is $400.
In the case of a contested divorce, the duration takes from 6 to 12 months. In very rare cases, a divorce can last more than 1 year. Very much depends on the complexity of the disputed issues between the spouses and their desire to seek compromises.
In the case of an amicable divorce, the duration is from 6 weeks to 4 months. Moreover, after filing a lawsuit, there is a mandatory waiting period for 1 month before the court proceeds with the consideration of the case.
For a simple (uncontested) divorce most of the next forms are mandatory:
- Notice of Joint Family Claim (Form F3)
- Financial Statement Agreement (Form F8)
- Agreement as to Annual Income (Form F9)
- Registration of Divorce (JUS 280)
- Affidavit — Desk Order Divorce (Form F38)
- Child Support Affidavit (Form F37)
- Application Response (Form F32)
- Counterclaim (Form F5)
- Requisition (Form F35)
- Certificate of Pleadings (Form F36)
- Petition (Form F73)
- Final Order (Form F52
- Requisition (Form F17)
- Certificate of Divorce (F56)
- Response to Family Claim (Form F4)
It should be noted that if the couple does not have common minor children, then Form F37 is not necessary to fill out. Also, the forms F17 and F56 are optional. They are filled at will if the spouses want to receive a Certificate of Divorce.
After all the necessary documents have been submitted to the court, the claimant is obliged to transfer copies to the defendant. This process is called "serving." In BC it is allowed to do this in 2 different ways:
- Personal service. Someone must hand over the documents to the respondent personally, and this person must be at least 19 years old. The claimant himself/herself, or his/her relatives, or relatives of the defendant, as well as the sheriff, can transfer documents.
- Ordinary service. Documents can be sent to the defendant. For example, by mail, by fax, by email or via certified mail.
Some documents can be handed over personally as well as sent, while there is a definite list of forms that can only be transferred using only personal service. This list can be found on the BC Supreme Court website.
Online divorce is a very popular divorce service. The implication is that this is a website that helps spouses prepare all the necessary documents for a divorce, while it is absolutely legal. It works in this way: the plaintiff enters the site and answers questions regarding his/her marriage, after which the system provides all the necessary documents that have already been filled out in accordance with the requirements of Supreme Court. This is an excellent service for uncontested divorces since it is possible to prepare the entire required package of forms simply and without the participation of a lawyer. But, spouses should carefully choose the service, since not all platforms provide quality papers, as a result of which a claim for divorce will be rejected. However, our clients have already managed to make sure of the quality of the documents we provide.
When a family lives together, both parents are guardians of the child and both are equally responsible for the child. However, when parents are divorced and cannot live together, they must share custody of the minor child. There are 3 main types of guardianship in Canada:
- Sole custody. Only one parent has rights and obligations in the process of raising a child, while the child mostly lives with this parent. The second parent has the right to live with the child for less than 146 days per year.
- Joint custody. Both parents have rights and obligations in the process of raising a child. Part of this custody is shared custody, in which each of the parents has at least 40% of the obligations and rights in relation to the upbringing of a child. In this case, the child lives with each parent for at least 146 days a year.
- Split custody. There are several minor children in the family. And one or more children live with one parent, while the rest of the children live with a second parent.
The decision on which guardianship is best for the child is made by the judge, based on the analysis of various factors, for example, the involvement of each parent in the process of upbringing, the wishes of the child, the ability of parents to look for compromises in the process of making important decisions in the child’s life and any other factors that the judge considers important.
The amount of financial support for the child mainly depends on the income of the non-residential parent, and the time spent with the child is not particularly taken into account. However, the amount may vary significantly if the non-residential parent spends more than 40% of visitation time with the child. In this case, the BC is always governed by the Family Relations Act when calculating the amount of financial support for a kid.
Spousal support is very common practice in BC and aims to help one spouse cope with the difficulties of divorce. Usually, the spouse whose income is lower receives alimony. In British Columbia, there is no clear formula for calculating the amount of support, but the following factors will be taken into account before the court decides: the duration of the marriage, the income of each spouse, the custody of minor children and the definition of the parent with whom the child lives. In almost all cases, the parent who is the child’s main guardian may receive a large amount of alimony, even though he/she already receives financial support for a child. Alimony is usually paid monthly for a certain period of time (several years), in rare cases, it may just be a lump sum.
Spouses have the full right to discuss and agree on how they want the property to be divided. This may be reflected in the prenuptial agreement or a separation agreement. If both accept this, the court will support such an agreement.
If the couple does not have an agreement on how to divide all property, the court assumes that the proportion of 50/50 should be in effect. Thus, everything that was acquired by the spouses during the marriage will be divided evenly.
All the property that the spouses owned before the marriage is not subject to separation and will not be divided after the divorce. Gifts or inheritance, which each spouse received while being married, should not be divided according to the law.
Spouses have the right to file for the division of property in the process of marriage dissolution or within 2 years from the moment the decision on divorce came into force.
Debt division follows exactly the same rules as property division. All debts should be divided evenly. Any debts and loans for acquisitions of a property or a family house will also be divided equally after a divorce, regardless of who stays in this house.
Mediation is a good alternative to legal debate. Mediators help spouses resolve conflict issues and reach a compromise. In this case, the spouses are not forced to make a decision that they do not like, because the mediation is aimed at finding a way out of the situation that would suit both parties. Mediation is not mandatory in the BC, spouses can ask for help if they themselves want it. However, if there are minor children in the family, the court may recommend that parents use the services of intermediaries to resolve disputes regarding the separation of guardianship.
To get a divorce, the claimant must fill out Notice of Family Claim and file this form with all accompanying documents with the court. After the clerk registers the case, the claimant must make all possible attempts in order to find a spouse and give him or her copies of all necessary documents. If this could not be done, the claimant must provide the court with proof that he/she took absolutely all measures to find a spouse, but this did not bring any results. After analyzing the evidence, the court can either cancel the serving and grant the divorce automatically, or, as a way of possible serving, allow the plaintiff to make a publication in the local newspaper with an intention to divorce.
After the defendant received all the necessary documents concerning the divorce, he or she has 30 days (if he/she is a resident of Canada) to file a response with a court. If during the specified period of time the defendant does not file the answer to the court and does not show any desire to participate in the dissolution of the marriage, then the divorce will be granted by default and will be held as an uncontested divorce.
Annulment is a process that invalidates a marriage. This happens if the marriage has legal errors, which means that it was entered into incorrectly. Such a marriage cannot be dissolved with the help of divorce; it can only be annulled and it’s possible to do in BC in case of one of the following reasons exists:
- Marriage between close blood relatives.
- “Shotgun” weddings.
- During the marriage ceremony, one spouse did not understand what was happening.
- If at the time of marriage one of the spouses was not yet 18 years old, and he or she did not have permission from the parents to enter into marriage.
- If at the time of the marriage ceremony one of the spouses did not understand that this is a real marriage ceremony.
- At the time of the marriage ceremony, one spouse physically could not marry.
In the province of BC, there is no such thing as "legal separation." Spouses are considered separated as soon as they begin to live separately and this does not require the consent of the other spouse. Official marriage in Canada can end only by divorce.
Same-sex marriages are allowed in British Columbia since July 2003. There are no separate rules or restrictions for same-sex couples. They still have to prepare all the necessary documents and file them with the court. Also, such couples on an equal footing with other divorces go through the process of separation of property, custody of common minor children, solve the issue of alimony and financial support for the child.
If one of the spouses is a member of the Canadian Armed Forces (CAF), the other spouse is entitled to a portion of the military pension upon divorce. However, this can only happen if there is a written agreement between the spouses on the separation of the pension or if the court requests such division. But if a spouse who demands part of the second spouse’s pension has any assets at a price equal to or greater than the required share, then the military pension will not be divided.
If one of the spouses is a prisoner, a divorce can be obtained, provided that the spouses do not live together for at least 1 year. All other steps that the claimant must take in order to dissolve the marriage are exactly the same as for other types of divorce.
When the plaintiff submits the forms to the court, he or she is obliged to pay for the court fee, which is $ 200.
A claimant with a very low income or with such divorce expenses that make the amount of the court fee too difficult to pay has the right to appeal to the court to cancel for him or her filing fee.
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