In Canada, the federal government has the jurisdiction to make laws in relation to marriage and divorce. Section 8 of Canada’s Divorce Act provides that a divorce may be granted upon application by either or both spouses, provided there has been a “breakdown of the marriage.” In addition, there are certain administrative requirements that must be fulfilled in order to finalize a divorce. In today’s blog, our divorce lawyers walk you through some of the basics of what you will need before you are granted a divorce in British Columbia.
Citizenship Status and Divorce Eligibility
Both citizens and permanent residents are eligible to apply for divorce in Canada. If you are not a citizen or permanent resident or citizen, you may still be eligible to apply for divorce in Canada if you got married in Canada and are unable to undo your marriage in your country of residence because that country does not recognize your Canadian marriage.
Your Marriage Certificate
In order to file for divorce, you will need to produce your Certificate of Marriage or a certified copy of the Registration of Marriage from British Columbia’s Vital Statistics agency, which maintains records for birth, marriage and death back to 1872. More information on how to order a copy of your marriage certificate can be found here. Of course, in order to ensure a smooth application process for the purposes of obtaining a certificate, it may be helpful to speak to one of our Vancouver divorce lawyers first.
If you were married in another country or province, you will need to apply for your original Certificate of Marriage or certified copy of the Registration of Marriage from the equivalent of Vital Statistics in that place. Each province in Canada has its own Vital Statistics agency.
If your marriage certificate is not in English, translation will be required. Every province has somewhat unique rules regarding what protocol must be followed in this regard. In British Columbia, a translation must be provided by a certified translator. You will need to have the translator translate the document and provide you with an Affidavit of Translation, attaching the original document and translated version as exhibits. Again, in order to ensure a smooth process, it is wise to consult with a divorce lawyer about these processes.
Proving Breakdown of the Marriage
Besides providing your marriage certificate, you will need to prove to the court that there has been a breakdown of the marriage before a divorce will be granted.
To demonstrate a marriage breakdown, the party applying to the court for the divorce must demonstrate grounds for the divorce. Typically, this party will prove that the parties have lived separate and apart for at least one continuous year in the timeframe immediately before the determination of the divorce proceeding (in other words, before the final hearing or decision where an order is made granting the divorce) and that they were living separate and apart at the time the proceedings were commenced. If the time requirement is not met, a divorce will only be granted if the judge is satisfied that another ground for divorce has been proven. For example, the respondent spouse in the divorce proceeding may have committed adultery or has been physically or mentally cruel to the point that living together is unbearable or intolerable for the applicant spouse. Most people will wait for the year to pass if even there is another ground for divorce.
Couples are usually separated with a written, signed separation agreement before divorce proceedings have commenced. While some spouses do not immediately formalize an agreement, drafting the agreement will entail dividing assets and deciding child custody and support issues.
It is always advisable to consult with a Vancouver family lawyer before executing any separation agreement with your spouse. Separation agreements are often the root cause of litigation in the face of separation or divorce.
A 2014 British Columbia Supreme Court decision provides a good example of how complex separations can become, with regard to the number of issues that must be addressed when spouses facing divorce cannot see eye to eye. In this case, the court was forced to address the following issues, among others, for which the spouses could not reach any agreement:
- Parenting responsibilities of each spouse with respect to the children
- Division of family assets including two properties
- Expenses incurred with respect to one of the properties
- How to divide vehicles, the family timeshare, RRSPs, CPP and pension, and Air Miles
- Children’s Savings Plan
- Addressing family debts
- Occupational Rent
- Child support
- Spousal support
Each of these issues requires the court to consider each party’s version of the facts and arguments with regard to each’s position about what is fair and sensible. In addition, the court must look at the numbers, and often the evidence of accounting experts, in order to reach fair values with respect to matters such as monthly spousal support amounts.
In another BC Supreme Court decision, the court considered the expert evidence of two accounting experts, one from each party to the proceedings, with respect to the value of one of the spouse’s pension plans. The court was required to consider these nuanced details in order to fairly establish the appropriate amount of retroactive spousal support to be awarded to the applicant.
Contact Guardian Law in Vancouver
If you are considering filing for a divorce in the Vancouver area, Guardian Law can protect your legal rights and guide you through the process. Call us at (604) 901-3477 to set up your consultation or use our online contact form.