What you should know
“I was served with divorce papers five days ago. I don’t agree with everything my spouse is asking for. So I’m putting together a response. I have to file my papers in Supreme Court in the next few weeks. I’ve set up an appointment for next week with a family lawyer — for free — because I have some questions before I file my paperwork."
– Rhyan, Cranbrook, BC
When your spouse starts divorce proceedings, they file a notice of family claim in BC Supreme Court. Your spouse is the claimant. You are called the respondent.
You must be served with the notice
As the claimant, your spouse must arrange for the notice of family claim to be personally served on you. This means it must be given to you in person, but not by your spouse.
If you aren’t available to receive the papers or the claimant has trouble serving you personally, they can seek the court’s permission to serve you substitutionally. That means using a different method of service. It might involve, for example, leaving the papers at your last known address, with your close relatives, or in your mailbox.
Read the notice
Read the notice of family claim carefully. It sets out the court orders your spouse wants the court to make. If and how you respond to the notice depends on the orders your spouse is asking for, and whether or not you agree with the claims.
The claims in a divorce proceeding could significantly affect your rights. Consider asking a lawyer to review the notice of family claim with you and explain what it means. See below under “Who can help” for free and low-cost options for advice.
The notice of family claim gives the court basic information about you, your spouse, and any children. It also includes information about your marriage and separation. And it describes the orders your spouse is asking the court to make, such as for a divorce, support, and a division of property and debts.
The grounds for divorce
To get a divorce, your spouse must show your marriage has broken down. This can be done in three ways:
- by showing the two of you have lived apart for at least one year,
- by showing you committed adultery, or
- by showing you treated your spouse with cruelty that makes living together intolerable.
The notice of family claim will state your spouse’s reason for marriage breakdown, such as being separated for a year. You may agree with this. On the other hand, if your spouse is claiming adultery or cruelty and those claims aren’t true, you probably won’t agree. For more on the legal basis for divorce, see our information on the requirements for divorce.
In the notice of family claim that starts a divorce proceeding, your spouse can also ask for orders about other issues. These might include the parenting and support of your children, spousal support, the division of family property and debts, and other matters.
Carefully consider what your spouse is asking for. If you have children, your spouse may be asking for parenting time and all decision-making responsibility under the Divorce Act. Do you feel that shared decision-making responsibility would be better? Or do you believe that you should have all decision-making responsibility? If your spouse is seeking a 50/50 division of family property, do you feel you should get more than half?
It’s a good idea to meet with a family lawyer and get legal advice if your spouse is making claims beyond seeking an order for divorce.
If you disagree with any of the orders your spouse is asking for in the notice of family claim, you must respond. You do that by filling out a response to family claim (form F4). Part of this form involves certifying that you know about your duties under the Divorce Act to:
- exercise parenting rights in the best interests of the children,
- protect your children from conflict because of the court case,
- try to resolve your disagreements through mediation, collaborative negotiation, or arbitration, and
- provide complete, accurate, and up-to-date information as required.
Once you’ve completed the form, you must file it in the same court in which the notice of family claim was filed.
Along with your response, you may need to fill out and file other forms (such as a financial statement), depending on what claims your spouse is making. Then, you must serve the filed court forms on your spouse.
If you have claims of your own you want to make — for example, about the parenting of your children, support, or how to divide property — you must file a counterclaim. The counterclaim says what orders you want the court to make. Just as you did with the response, you must fill out, file, and serve the counterclaim on your spouse. You must do this within 30 days of the date you were served with the notice of family claim.
It’s very important to respond if you disagree with any of the orders your spouse is asking for. If you don’t, the court can make the orders your spouse is asking for without any further notice to you.
If your spouse is only asking for a divorce and you don’t respond, the proceeding will become an uncontested divorce proceeding. But if you file a response to family claim, the divorce proceeding is contested. In that kind of proceeding, there’s usually disagreement about how to settle some or all of the family law issues. A trial may be necessary if you can’t reach an agreement.
You can object, but you’re unlikely to succeed. Most of the time, the judge will make a divorce order as long as the basis for the divorce is proven. It doesn’t matter whether you want it or not. In some rare situations a judge may refuse a divorce. For example, a divorce wouldn’t be granted if reasonable arrangements haven’t been made for the support of any children. The judge could also refuse to grant a divorce if it would mean the end of the pension benefits a spouse is receiving, at least until the property division and any support claims are dealt with.
After you file a response, you or the claimant can schedule a judicial case conference. This is an informal meeting with a judge or master to talk about the claims each of you has made, see what can be agreed to, and talk about how the claims will be resolved.
A judicial case conference (or JCC) is a good time to tell the judge — and your spouse — what you really want. The conference is held in private and everything you say is confidential and without prejudice. This means it can’t be repeated outside the meeting room or used against you later if you don’t reach an agreement. The judge won’t make any decisions unless you and your spouse both agree. But, the judge can make procedural orders, including asking you or your spouse (or both of you) to provide required financial information.
From the time a notice of family claim is filed, it can take a year or more to have a trial if a case can’t be settled out of court. Before the trial, you or your spouse may need the court to make temporary orders about important issues such as:
- the payment of child support or spousal support
- where the children will live
- who will live in the family home
These are called interim orders. They can be made when one or both of you make an interim application to the court. An interim (or temporary) order lasts until another interim order is made. Or it will stay in place until the final order ending the case is made at trial or by agreement.
Interim applications should be taken very seriously. Interim orders can influence the final outcome of the case. For more, see our information on applying for an interim order in a family law case in Supreme Court.
Each time you go to court, it costs time and money. Try to save interim applications for really important problems. The more you can agree on things with your spouse, the easier and less expensive the court process will be for each of you.
If the claim for divorce is based on a one-year separation, a divorce application and divorce order can be made any time after the one-year period is over. If the divorce claim is based on cruelty or adultery, the order can be made at any time. But, there must be evidence to support those claims.
No matter what the claim is based on, the court must be satisfied that reasonable arrangements have been made for the financial support of any children. Otherwise it will not make the divorce order.
A divorce order can be made before all the issues are resolved. But the court will usually be hesitant to do so without a very good reason (such as remarriage).
If your divorce order doesn’t cover the division of property or debt and you didn’t claim a division of property in the divorce proceeding, you have two years after the date of your divorce to make a claim under the Family Law Act. The same deadline applies to seeking spousal support for the first time under the Family Law Act.
Divorced spouses can always claim spousal support under the Divorce Act. It doesn’t matter how long they’ve been divorced.
Divorced spouses can always make a claim about children — such as claims for parental responsibility, decision-making responsibility, parenting time, or child support. That’s as long as the children qualify as “children of the marriage” under the Divorce Act or as “children” under the Family Law Act.
Who can help
Unbundling allows you to hire a lawyer for specific parts of your case or to coach you through the court process. Unbundled Legal Services lists family law lawyers who offer these services.
Other options for legal help include legal aid, pro bono services, legal clinics, and advocates. See our information on free and low-cost legal help.