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Every year in British Columbia, thousands of couples decide not to live together anymore. The process of ending a relationship is not an easy one, and it takes time to fully recover from a separation.
Under BC family law, separation is defined as when a couple that has been in a relationship chooses to live independently of each other. A divorce is a court order ending a valid marriage. In BC, family law also applies to people in same-sex relationships.
There is no specific legal definition of “separation” but it does require a physical separation coupled with recognition by at least one of the spouses that the relationship is at an end. Spouses can continue to live in the same family home during separation so long as they can establish they are living separate and apart despite being under the same roof. Couples often prepare a separation agreement that outlines how they will organize their affairs related to family property, debt, household expenses and parenting arrangements if the couple have children together.
If you are married, a divorce order is the only way to legally end your marriage. The first step is filing a Notice of Family Claim in the BC Supreme Court. Even if you and your ex-spouse agree on all of the parenting, support, property and debt issues, you must apply to court for a divorce.
Generally, couples must be separated for one year before a divorce is granted, and the courts require all arrangements for any children have been satisfied. You can get a divorce prior to one year of separation if the following is proven in court:
A divorce may be granted after one year of separation. But, if a divorce is contested because you cannot agree on parenting, support, property or debt division, the time frame will be longer. A contested divorce is complicated and can take many paths. It may include interim orders and court hearings. A trial date may not be available for well over a year.
We highly recommended hiring a lawyer to understand the options to try to resolve a contested divorce.
About 80% of divorces are uncontested or undefended. This means the divorcing couple have agreed on how they’re going to settle their parenting, support, and property issues. In Canada, there are many alternative processes to achieve an uncontested divorce.
The courts prefer couples look at mediation, arbitration and collaboration to settle their affairs. Once the parties agree on the terms of their divorce, they are able to obtain a consent divorce order without the cost of a trial.
Whether the divorce is obtained by consent or at trial, there may be future reviews of child and/or spousal support to take into consideration changing circumstances such as income fluctuations.
Consent divorce orders enable spouses to limit future changes by creating an agreement which may eliminate, or significantly curtail, the need for future support variations. Lack of proper financial disclosure can also justify changing the terms of a divorce order.
Divorce costs are affected by:
Preparing thoughtfully and proactively for separation and divorce is key to optimizing your results at the lowest cost. Partnering with MacLean Law will enable you to make informed decisions and take constructive actions.
Herr Law Group works with each client to review their unique situation and discuss various options. We offer initial consultations starting at 30 minutes. The BC Family Law Act encourages couples to resolve disputes outside the courtroom whenever possible. Your initial consultation can begin the process of reaching a solution which helps you and your family achieve a post separation life that maintains financial stability for everyone while prioritizing the best interests of the children.
There are very specific rules related to parenting arrangements and child support under the BC Family Law Act. The law requires the court to encourage spouses to focus on the best interests of their children, including minimizing the effect of any conflict between spouses.
Parenting plans should focus on providing the best environment and opportunities for the children. Child support is determined either through a negotiated agreement or by court order in accordance with the Federal Child Support Guidelines. These important issues are usually best addressed in a separation agreement. We highly recommend you seek the advice of a lawyer to understand your options and obligations related to the well-being of your children during this stressful time.
Generally, when spouses separate, the starting point is that all property owned by either of them is treated as “family property” subject to equal division. This includes not only physical objects, but also money in bank accounts and investments, irrespective of whose name is on the account. The same goes for family debts.
However, under BC’s “excluded property” regime, assets you brought into the relationship can remain yours, even if they were used for family purposes, so long as certain conditions are met. Some property obtained during the relationship may also qualify for an exclusion; including gifts from others, inheritances, and some insurance proceeds and personal injury settlements.
Family property division and debt resolution can be accomplished either by negotiated agreement or through the courts. A court may divide family property or debt unequally only if it would be “significantly unfair” to divide it equally. The court can look at a number of factors when deciding whether to divide property or debt unequally. Refer to the property division page for more information.
You are not required by law to retain a lawyer to file for divorce. There are two avenues to resolve the breakdown of your family relationship: through litigation in the courts, or through alternative dispute resolution processes such as negotiation, mediation or arbitration. Hiring a lawyer with expertise in family law can help lay the groundwork for your successful new future.
Herr Law Group can help you:
There are various costs and expenses related to divorce and these vary depending on whether there is litigation. There are fees for hiring lawyers, process servers, agents, and/or interpreters, court fees, disbursements and other costs of conducting a lawsuit. At your initial Herr Law Group consultation meeting, your lawyer will review your unique situation and provide options for moving forward. A non-contested and low-conflict divorce will most likely be suited to arbitration, mediation or a collaborative process.
However, if a family dispute goes to the Supreme Court or the Court of Appeal, it is common for the party who loses a lawsuit to be ordered to pay a portion of the legal costs of the party who wins. The awarding of costs usually comes at the end of a trial or an appeal, but it’s also possible to be awarded costs after a hearing for an interim order.
Cost awards are generally not available in Provincial Court except in very limited circumstances.
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