The process of separation and divorce is a disruptive and life-changing event - both emotionally and financially. Our law firm provides comprehensive support: mediation, court appearances, trial, and negotiated settlements. We help to resolve contentious disputes about children, financial support, property division, and other important issues. We also draft cohabitation or marriage agreements for couples embarking on a life together, in the hope of minimizing conflict later on.
While it is possible to be self-represented, emotion often prevents objectivity. It is far preferable to obtain legal advice and help from an experienced family lawyer. This will provide you with a better understanding of your rights and obligations under the Family Law Act and Divorce Act. Our objective when assisting you is to protect your interests - to achieve reasonable terms when possible and court-ordered relief when necessary.
The first step in the process is to consult a lawyer who will advise you as to what information and documents need to be assembled. Obtaining a divorce order in BC is relatively straightforward. The challenge is to get a separation agreement or court order in place before you apply for the divorce order. Your lawyer will help you to resolve various legal issues relating to your separation and divorce.
Regardless of the ground, to file for divorce in BC, at least one spouse must be a BC resident, and have been for at least 12 months. The most common ground for divorce is a separation of one year. However, you are at liberty to commence the divorce proceeding before the full year has expired. Other grounds for divorce would be adultery, or alternatively, mental and/or physical cruelty that renders continued cohabitation intolerable, but these are difficult to prove so it may be easier to wait for the expiration of one year.
The court typically prefers to see a separation agreement or court order in place which effectively resolves all marital issues arising from the separation (such as division of assets, debts, support, and parenting arrangements) before it will grant the divorce order. This is especially the case when there are children involved. Under section 11(1)(b) of the Divorce Act, the judge is specifically required to verify whether or not “reasonable arrangements” have been made for the support and care for any minor children of the marriage.
A separation agreement is a formal written agreement settling all issues arising from the separation. The preferred method of resolving issues between spouses upon the breakdown of a relationship is a formal written separation agreement. This eliminates the need for a court order. To have an enforceable agreement, there must be financial disclosure and each party must obtain independent legal advice. Where there is goodwill, a collaborative approach may work best. A separation agreement can be negotiated by the parties themselves, through a certified family law mediator, or with the help of lawyers.
A simple uncontested divorce, where there is a separation agreement or court order in place, can be readily obtained by one party or even by the couple working together. If the various issues which arise upon separation have not been sorted out by means of an agreement or court order, then it is advisable to obtain legal representation. If a person wishes to be self-represented, the BC Supreme Court website contains the essential information. Nevertheless, it is still advisable for you to be coached through the process by a lawyer.
An uncontested divorce is typically issued as a “desk order” without the need for either party to appear in court. A desk order involves filing the supporting forms with the court, and if all is in order, the judge will grant a divorce without the necessity to appear in court. In a contested divorce, there may be multiple court appearances, including a trial. If your dispute goes to court, you and other persons (including experts) may be called as witnesses.
The Notice to Mediate Regulations allow a litigant in a family law proceeding to serve a Notice to Mediate on the other party to trigger mediation before a certified family law mediator. A refusal to participate in the mediation process may have negative consequences for the party who refuses to participate, such as an award of legal costs. Separate from the court process, parties are always at liberty to undertake mediation, and the Mediate BC website contains an up-to-date list of suitable mediators. It is common for the parties to share the costs of mediation and to attend meetings without their lawyer – this can result in significant savings. However, the parties may wish to bring their lawyer to the mediation sessions, or, alternatively, receive coaching from their lawyer before each session.
A simple uncontested divorce should take approximately 4 to 6 months from the time of filing. A contested divorce, with multiple outstanding issues, may take approximately 12 to 18 months from the time of filing. If either party chooses to appeal a court order, then the process may prove to be much longer.
The usual budget for a simple uncontested divorce is between $1000 to $1500, plus disbursements and taxes. If there are minor children involved, then additional documents may need to be submitted, and this will increase the cost somewhat. If the parties are resolving all matters in court, including their divorce, the parties can end up spending a significant sum on this exercise. A contested divorce is expensive – this provides a mutual incentive for the parties to mediate or negotiate their settlement in a reasonable way.
Custody or guardianship of minor children is determined on the basis of what the parties themselves negotiate, or if a judge is asked to make a determination, then the “best interests of the child” prevail. Section 37(2) of the Family Law Act lists the criteria a court must consider when determining how parenting time and contact will be allocated between the two parents. The Divorce Act similarly focuses on the best interests of the child.
Real and personal property accumulated during a couple’s relationship is generally divided equally, unless that would be “significantly unfair”. As well, it is possible for either party to claim that some part of the assets acquired during the relationship were either pre-existing assets, inheritance, or gift, and should therefore be treated as “excluded property” under section 85(1) of the Family Law Act. Lastly, there may be a marriage agreement which affects the outcome. If the financial affairs of the couple are complicated, then legal and accounting advice is crucial to ensure that the ultimate division of family property is equitable. Once resolved, the property division is set out in either the separation agreement or a court order.
The BC Supreme Court Family Rules allow a litigant to seek recovery of legal costs. One effective tool is provided by Rule 11-1, which permits a party early in the lawsuit to serve an Offer to Settle, which may ultimately result in an order of “double costs” being made by the judge at trial against the other party, who stubbornly refused to accept the reasonable terms set forth in the offer. Your lawyer can work with you to carefully craft an Offer to Settle, and if such offer is accepted then significant savings will be achieved.
