The number of divorced people and those who failed to remarry in Canada rose to 2.74 million in 2021. This represented a 3% increase from the previous year’s divorce and remarriage rates. One of the country’s highest divorce rates is in the province of British Columbia on the west coast. The province’s divorce rate sits around 39.8%, a slightly higher percentage than the national average.
Even so, terminating a marriage in BC is not an easy task. You have to navigate the complexDivorce Law in Canada with the help of an expert family lawyer. The process can only sail through if you obtain a divorce order from a judge at the Supreme Court of BC. One of the least contentious ways to file for divorce in BC is on the grounds of marriage breakdown after a one-year separation.
What are Grounds for Divorce in BC?
The Supreme Court of BC grants divorce on the grounds of marriage breakdown. Section 8(2) of the Divorce Act states how a party can prove a breakdown of their marriage. However, you must provide sufficient proof of the claims for the Court to decide whether they warrant a divorce order. One of the best options is to have your spouse admit to the accusations in an affidavit.
The three common grounds for divorce in BC include:
1. One Year Separation
Separation is the commonly used ground for divorce in BC. Any couple who stays separated for 12 months can file for divorce once there’s sufficient evidence. The Supreme Court of British Columbia reserves the right to grant an order for divorce, regardless of the reason for separation.
However, the couple is first granted time to attempt reconciliation by being allowed to stay together for 90 days without having to start the one-year separation period. This is allowed to happen even after the onset of divorce proceedings.
If the couple stays together past 90 days but fails to reach a reconciliation agreement, the 12-month period will reset. There’s no law barring couples from staying together while waiting 12 months for their Divorce Order. However, they’ll still be required to prove that they live separately.
Getting a divorce on the grounds of adultery has more hurdles than separation. The difficult part is that you must prove the adultery took place. While the Court won’t compel you to identify the person involved with your spouse, you must base your allegations on clear factors that the court can substantiate.
The best way to obtain a divorce order based on adultery claims is to have your spouse admit it in an affidavit. Other methods like examination for discovery and court appearances will require in-depth consultation from your family lawyer before filing for a divorce order on those grounds.
Pursuing divorce on the grounds of adultery also requires both parties to swear there has been no collusion. In addition, the adultery must have occurred without the second spouse’s consent. The court won’t consider the duration of the affair as long as there’s reliable proof of adultery.
Usually, the courts will provide a divorce order on the grounds of adultery if the affair involves an extramarital sexual relationship. Remember that the Supreme Court of BC doesn’t allow extramarital sex in open marriages as a legal ground for divorce.
3. Mental or Physical Cruelty
Toxic marriages involving mental and physical cruelty are not tolerable in BC. The Court allows you to get out of these relationships by pursuing a divorce citing maltreatment. A divorce is only granted on cruelty grounds if the level of maltreatment renders continued cohabitation unbearable.
However, the courts will require you to provide any evidence that proves cases of cruelty. The court also requires that any cruelty claims be subjectively interpreted and free from any inconsistencies. If you have enough evidence to prove cruelty, either physically or mentally, the courts will likely grant you a divorce order.
The Supreme Court of BC and the family law system are set up to ensure no-fault divorces. As such, shallow allegations of cruelty and adultery will be thrown out. The courts encourage no-fault divorces because they are less emotionally charged and adversarial, and ideal for maintaining co-parenting relationships.
Steps For Getting a Divorce in British Columbia
You don’t need a family lawyer to file for a divorce in BC. However, working with one will be helpful, especially when the divorce is highly contested. A family lawyer will also inform you about your legal rights and what you need to know when you get a divorce.
1. Gather the Relevant Documents
Each party and their legal representation are first required to gather the legal documents for divorce. The court will also allow for time to settle any disputes over custody, child support, and property if you plan on pursuing an uncontested divorce.
Even though a separation agreement is not necessary when filing for divorce in BC, the Court may want to see that you agreed on most contentious issues, especially concerning the children.
2. Fill Out the Notice of Family Claim Form
The next step is to fill out the Notice of Family claim and register the divorce process officially. You’ll need to file this at the registry and serve the Notice of Family claim to your spouse. This is one of the standard Supreme Court forms you need to advance your family case in BC.
Failure to respond to the Notice of Family Claim within 30 days means you’ll proceed to a contested divorce proceeding in court.
3. Prepare other Forms and Affidavits
You’ll have to fill out three more forms and affidavits and ensure you affirm them before the court. The court allows 30 more days after swearing the affidavit to file the divorce documents.
4. Apply and Serve Divorce Orders
The Court only issues a divorce order if your spouse agrees to a Notice of Family Claim. In some cases, the court may issue interim orders to find amicable solutions to other issues while you continue the court process.
The Supreme Court of BC will declare a divorce automatically final 31 days after granting a divorce order. This takes into account that all avenues for appeal have been exhausted, and there’s nothing any party can do to change the decision. You can only remarry after the 31 days have elapsed.
What You Need to Know About Divorce In BC
Divorce can be an expensive and chaotic experience, especially when the two spouses don’t find common ground to handle their issues. This explains why the Supreme Court of BC provides for a contested and uncontested divorce. If spouses reach a mutual agreement to end their marriage, they can file for an uncontested divorce.
In this divorce agreement, critical issues such as child support and custody, property sharing, and spousal support are agreed upon on their terms. Uncontested divorces usually provide the best option because they involve a more straightforward process devoid of endless court hearings.
Contested divorces are always the last resort if spouses can’t agree on a decision to pursue divorce. Some of the key factors on which contested divorce hinges include; disagreement about child custody, property division, or financial support.
To file for a contested divorce, you need to have all the proof that there are sufficient grounds for terminating the marriage. Also, the judge decides what to do about the contested issues such as child support, parenting and property sharing.
You need a qualified family lawyer to increase your chances of getting a divorce in BC. You need a lawyer with solid experience and who has previously worked on divorce settlements in BC. A good family lawyer will help you familiarize yourself with the divorce process and advise you concerning the options available to you.
Filing for a contested divorce will only need to prove to the Court that you’ve been separated for more than a year and have no intention of getting back together.
How Long Does It Take to Get a Divorce in BC?
The Supreme Court of BC provides no standard time for a divorce proceeding. But what we all know is that uncontested divorces will take far less time depending on how long the spouses take to solve their issues amicably. Divorces with no complexities take approximately three to six months from filing to receiving a divorce order.
Should there be serious disagreements about the separation, the court may take longer to ensure all factors in question are taken care of before delivering a divorce order. This can take as long as one and a half years.
Obtaining a divorce in BC is relatively simple and straightforward, provided you can substantiate the claims before the Supreme Court. You need to demonstrate that your marriage has failed due to one or more of the three grounds. The entire divorce process in BC is emotionally draining and, in most cases, will require you to rely on strong support from a family lawyer. Just ensure you and your spouse are legally married under Canadian laws or any marriage law recognizable in Canada. If you are confused about how to obtain a divorce order in BC, reach out to Pax Law’s family lawyer, Amir Ghorbani, today.