A divorce legally ends a marriage in Canada. If your relationship ends and you wish to legally remarry, you must obtain a divorce from your present wife or husband. Note that you can get a divorce in Canada even though you may have been married outside Canada. There are two aspects to getting a divorce: first, you must have legally recognized "grounds" for divorce; second, you must follow the Court procedure.
A "ground" is simply the legal basis (or reason) for the divorce. In Canada, there are three grounds for divorce:
So, procedurally how does one get a divorce and how long will it take? The procedure is fairly straightforward. Please note that the procedure discussed below is specific to British Columbia. Other provinces have different rules.
You don't need your spouse's signature: If you are filing for divorce, you don't have to wait to get your spouse's approval or signature on anything. You can go ahead and start the divorce proceeding. It's up to your spouse to respond if he or she wishes to have a say in the matter. I mention this point because it seems to be common that, once a marriage has broken down, one spouse is anxious to deal with ending the marriage, while the other spouse will delay or drag out the process, for whatever reason, even though that spouse does not wish the marriage to continue.
Prepare the Petition for Divorce: First, you write up (or have your lawyer write up) a document called a "Petition for Divorce". The Petition contains information about you, your marriage, the children, your financial situation and that of your spouse (as best you know it). You will also need your certificate of marriage and a photograph of your spouse. The Petition, along with the certificate of marriage and the applicable filing fees (currently $210), is then filed in the Supreme Court of British Columbia (the "Court"). The Court keeps the certificate of marriage. The photograph will be used in the affidavit that proves the Petition was served on your spouse, discussed below.
Serve the Petition: Next, the filed Petition must then be served on your spouse by someone other than you. To hire an agent to serve the Petition costs about $50, or more if your spouse is at a distance.
Wait for an Answer to the Petition: After the Petition is served, you wait to see if your spouse files one of two responding documents (called either an "Answer" or an "Answer and Counter-Petition") within the allowed time. The allowed time, counting from the day that the spouse was served with the Petition, is 20 days if the spouse lives in British Columbia, 40 days if the spouse is outside British Columbia but in Canada or the United States, and 60 days if the spouse lives elsewhere. If you file a Petition containing a claim that you know your spouse will disagree with, such as a claim for custody or support or division of property, you should expect your spouse to file a responding document.
Undefended Divorce: Fourth, if the spouse does not file a responding document within the allowed time, you may then apply for an "undefended divorce". You (or your lawyer) will have to prepare an affidavit setting out the facts on which the Court will grant the divorce. That affidavit along with a few other court documents (including an affidavit from the person who served the Petition on your spouse) are then filed in Court for processing. The documents get read by a judge. If they are in order, the judge will make the divorce order, usually in two to four weeks, depending on how busy the Court is. Orders involving children take longer to process by a couple of weeks. If the documents are not in order, the judge will return them for correction and re-submission.
How Long and How Much for an Undefended Divorce?: In Vancouver, an undefended divorce, from start to finish, will take two to three months to get through. In terms of total cost for a simple undefended divorce, you should budget around $400 for expenses and an additional $500 to $1,000 for legal fees. Those amounts don't include applicable PST of 7% (on legal fees) and GST of 7% (on legal fees and most expenses).
When does an Order for Divorce become Effective?: Once the divorce order is made, the divorce usually takes effect 31 days after the date on which the order is made. Be sure to remember the 31 days after the order is made if you are planning to remarry once the divorce is final. Also, you have to mail a copy of the divorce order to your spouse. (You just have to mail the order to the last known address; it doesn't matter if it actually gets to your spouse.) If you want proof of your divorce, once the 31 day period is up you can apply for a "certificate of divorce", at a cost of $15 for the Court fee.
Joint Petition for Divorce: If you and your spouse are in agreement as to the terms of divorce, instead of just one of you filing a Petition for Divorce, the two of you can sign and file a "Joint Petition for Divorce". This procedure has the benefit of saving the time and cost of serving the petition and waiting for an Answer, as discussed above.
Contested Divorce: What happens, though, if your spouse does file a responding document in time? In that case, you won't be able to rely on the undefended divorce procedure. Essentially, at that point, you and your spouse have two options:
Go to court: You can fight the lawsuit in Court. This may involve considerable expense, particularly if there is disagreement on issues of child custody or support. Time is also a factor: It can take eight months or more to get a trial date for a judge to hear your divorce application. It's hard to say how much a full-blown trial will cost from start to finish, in part because it depends on how much fight the other side puts up. But in rough figures you should count on spending at least $10,000, just for your side. And the upper limit is out of reach for most people: over $100,000 is not unknown.
Agree: You can try to reach agreement with your spouse on some or all of the outstanding areas of disagreement. There is a cost, too, to this approach, but it can be much cheaper than fighting about everything. And your children will benefit particularly from not having the hostility around them that a lawsuit brings. If agreement is reached on all of the outstanding issues, often one spouse will then allow the divorce to go through as an undefended divorce, so that no one has to appear to testify before a judge.
Change of Name: At the same time that you apply for the divorce order itself, you can apply to have your name changed to your maiden name or to a former married name or to any name you desire. All it takes is a few extra lines in your affidavit and in the court order. There's no extra cost. (Changing your name takes place under provincial legislation, not the Divorce Act.) If you want your name changed after the divorce has been finished, you'll have to apply under the name change legislation directly. Lastly, be aware that you can't change the name of your children this way without the other parent's consent; the name change discussed here only applies to the people being divorced.
What's Covered: The Family Relations Act ("FRA") is a statute passed by the British Columbia government. Compared to the Divorce Act (Canada), it is both broader and narrower. Narrower, because it does not deal with divorce, the legal end to a marriage. (In Canada, marriage and divorce are the constitutional responsibility of the federal government.) Broader, because in addition to issues involving custody, access and support, the FRA also deals with division of property, restraining orders, orders preventing disposition of assets, and orders for the exclusive occupation of the family home, among other things. In most cases, therefore, in order to obtain the fullest range of relief to cover all of the issues arising out of the marriage, a family where the spouses are married will have to deal with both the Divorce Act and the FRA.
Choosing between the FRA and the Divorce Act: For married couples, it is possible to start a legal proceeding under one Act and then later start another legal proceeding under the other Act. You won't get double relief (such as twice as much child support), but be aware of the possibility. For example, a person hesitant for religious reasons to start a proceeding under the Divorce Act will be able to obtain all the relief she needs under the FRA, except, of course, for the divorce. Usually, though, it is most cost-effective to include claims under both statutes in just the divorce proceeding.
What about unmarried couples?: Families where the spouses are not married to one another will not be able to use the Divorce Act at all. Those families will have to rely solely on the FRA (to deal with custody, access and support) and the general law of trusts (to deal with property division). The property division parts of the FRA don't apply to unmarried couples.
Choice of Court: If you start a proceeding under the Divorce Act, you are required to bring the proceeding in the Supreme Court of British Columbia, which is the senior trial court in that province. If you start a proceeding under the FRA, though, and limit your claim to custody, access or guardianship, a no-contact order, or support, then you can bring your claim in the Provincial Court of British Columbia. If you're claiming property division under the FRA, though, you'll have to bring the action in the Supreme Court of British Columbia. The difference between the two courts lies in the area of expense and time. The procedure in the Provincial Court (also called Family Court) is simpler and usually quicker than the procedure in the Supreme Court of B.C. The simplicity can come at a cost of information, though. There are more tools under Supreme Court procedure to find information about your spouse's side of the claim than there are under Provincial Court. But particularly if you don't need a divorce or don't need to deal with property division, or you want to deal with custody/access or support without hiring a lawyer, bringing your claim in Provincial Court can be a real time- and money-saver.