Frequently Asked Questions for British Columbia

Vancouver Divorce FAQ

How much does a divorce lawyer cost in Vancouver?

Most people want to know the costs of a divorce lawyer upfront but it depends on multiple factors—some of which are in your control and others that are not.

The single most important factor is likely to be whether you and your spouse agree on the key terms of the divorce. Typically, disputes arise over child custody, child support, spousal support and marital property division. If a divorce lawyer must collaborate or mediate a resolution between you and your spouse, the costs will rise because of the amount of time required.

If your lawyer handles all related issues, such as filing forms and paperwork with the courts, this will also increase charges.

Generally speaking, divorces between couples with children cost more than simpler divorces where property division and spousal support are the main elements to decide.

At a minimum, expect to pay $1,000-$1,500 if you hire a divorce lawyer. But, with an hourly rate of between $200 and $650 in Vancouver, it can quickly increase in the event of complications.

Generally speaking, the more experienced the lawyer, the higher the hourly rate. In complicated divorces, experience can count for a lot. However, if your divorce is relatively straightforward, with few outstanding issues, you do not need to hire a lawyer with 30 years of courtroom experience.

Other factors affecting total legal costs apart from the lawyer’s hourly rate and the level of conflict/dispute include the following:

• Whether experts need to be brought into the case, e.g., business valuators, property appraisers, psychologists, etc.
• The willingness of the parties to resolve matters out of court—generally, an attitude of compromise will help matters get solved quicker.
• How organized you are—a couple with well-organized finances, timelines, and the required documentation makes less work for a divorce lawyer (and lower fees).

Couples who agree on all matters can file for an uncontested divorce. Arranging this yourself incurs some standard court fees but you may save legal costs.

There are two separate court fees for divorce in Vancouver:

• $210 to file documents, and
• $80 when you make the final application

You may also incur costs for hiring a process server to serve documents on your spouse, swearing affidavits in front of a notary, getting a certified copy of your marriage certificate, translations into English, and ordering a Certificate of Divorce.

Bear in mind that many uncontested divorces still develop disputes—and divorce is never truly uncontested until both spouses agree to sign a separation agreement.

How long does it take to get a divorce in Vancouver?

Divorces in Vancouver take time and there is no getting around that fact. For starters, there are some mandatory requirements before you can even apply for a divorce, which can slow things down:

• You or your spouse must have lived in BC for at least a year, and
• You must usually have lived separately from your spouse for at least a year

While you can apply to the court for a divorce at any point after you separate, it cannot be granted by law until you have been separated for at least one year—if you are applying on the grounds of an irretrievably broken marriage.

You will be expected to prove that your marriage has broken beyond repair. You must also have made reasonable arrangements for your children and all matters between you must be resolved before a judge will sign the divorce order.

After that date, you must wait a further 31 days and, if no appeal is made, you are then considered legally divorced.

Can a spouse sue for adultery in Vancouver?

The vast majority of divorces in Vancouver are “no-fault” divorces where no blame is apportioned to either party for the breakdown of the marriage.

Divorce on the grounds of adultery or cruelty used to be possible but rarely happens now. Most judges will not consider the conduct of the other party in divorces unless it impacts the ability to parent a child.

Adultery may also impact negotiations when opposing lawyers collaborate on a separation agreement. A good lawyer may be able to negotiate a more generous settlement for a client based on the wrongdoings of the other party.

Do fathers have the same parental rights as mothers following a divorce?

Fathers in BC are afforded equal parenting and parental responsibility rights as the mother after separation or divorce.

This means that the father can become the primary custodial parent or even apply for sole custody and receive child support from the mother.

This only changed relatively recently. Previously, the mother enjoyed more rights than the father in Canada.

How are assets divided in a divorce in Vancouver?

Under the Family Law Act of BC, divorcing couples must share any property acquired during their relationship equally.

This includes unmarried couples who have lived together in a marriage-like relationship for at least two years.

The “marital estate” excludes any property that was brought into the relationship. However, the increase in value of that property during the marriage may be considered marital property.

Couples must follow the property division rules outlined in the Family Law Act unless they sign an agreement that divides property otherwise.

Can I get divorced without my spouse’s consent?

You do not need the consent of your spouse to get a divorce in BC but you do need legal grounds for divorce (marriage breakdown) and you must meet the residency requirements here.

Only one spouse needs to file the documents at the court, and the notice of family claim is then “served” on the other spouse (delivered by hand).

The respondent then has 30 days to answer the notice of family claim and may file a counterclaim. The divorce can proceed but mediation or arbitration may be required to settle differences—or a judge will need to decide on the validity of the divorce application.

To be granted a divorce in these circumstances, you will need to show that the marriage is irretrievably broken, which is more challenging if the other spouse does not agree but still possible.

Note that you can still obtain a divorce even if you cannot find your spouse providing you submit proof that he or she has fled the province or the country.

What is the difference between contested and uncontested divorce in BC?

An uncontested divorce is one where both spouses agree on all the key terms of the separation and are prepared to sign an agreement to that effect. These divorces are usually the most straightforward, least time-consuming and least expensive.

You may hear uncontested divorces referred to as “desk-order divorces” because no court appearance by either spouse is generally necessary and the paperwork is simply sent to the judge’s desk.

A contested divorce, on the other hand, means that you and your spouse do not agree on one or more of the terms of separation. Generally, the disagreements are about property division, child custody or parenting, child support or spousal support.

In a contested divorce, a court hearing is required and the judge decides what to do about parenting, support, and property/debt issues.

Around 80 percent of divorces in BC end up being uncontested. However, even couples who separate amicably want what’s best for themselves and their children, so it’s very easy for disputes to arise.

Separation Mediation FAQ

Do I need to go to court to file for a separation agreement?

There is no requirement in BC to go to court to obtain a separation agreement if you divorce or separate from your spouse. In fact, the family law system encourages you to arrange this out of court.

This is seldom easy because powerful emotions come into play and important matters concerning your family and financial matters must be addressed, most notably:

• Child custody and parenting plans
• Child support
• Spousal support
• Marital property and debt division

Mediators, arbitrators or family lawyers can often help you resolve these matters and draft a separation agreement without involving a judge. This is generally quicker, more cost-effective, and less stressful than going to court

Does a husband have to support his wife during a separation agreement?

If one spouse is dependent on the other for financial support during the marriage, the paying spouse should continue to provide that support during the separation period until the matter of spousal support is decided in the separation agreement.

Often, the level of support paid during the separation period is used as a model for the amount of spousal support payable after the divorce is granted.

Can you write your own separation agreement in BC?

It is not uncommon for the key matters in a divorce to be resolved around the kitchen table by the two spouses. In many ways, this is the ideal scenario.

From there, you can create a separation agreement using the many online resources and templates available.

But beware! Within a separation agreement, spouses make important financial decisions that impact the rest of their lives. It is generally a good idea, therefore, for an agreement to be reviewed by a competent divorce lawyer before you sign it.

Some people run into problems with issues concerning child custody, child support, spousal support or marital debt and property division. A lawyer, family justice counsellor or private mediator can help you resolves these issues and draft an agreement.

As well as protecting your financial interests, a lawyer will ensure that the agreement is legally binding, which is not always the case with self-written agreements. All agreements must comply with the principles and guidelines contained in the BC Family Law Act.

How do I prepare for separation mediation?

Sometimes, mediation is required as an alternative dispute resolution method when couples separate.

Mediation may help to avoid a divorce ending up at a trial. In mediation, a trained mediator will attempt to facilitate an agreement between you. Your lawyer may or may not be present.

If you and your spouse decide (or are ordered by the court) to mediate, you should be prepared for the sessions. This goes beyond preparing the correct documentation, though that is important too.

Here are a few steps to take to ensure that you give your mediation the best possible chance of success:

• If you hire a divorce lawyer, inform him or her of all the key facts of your case
• Inform your lawyer about the relative strengths and weaknesses of you and your ex-spouse
• Ensure that your lawyer is aware of your financial priorities and preferences in the case of custody
• Prepare a mediation brief with your lawyer to outline your position
• Prepare to leave negotiations to your lawyer, who will act in your best interests
• Prepare documentation to enable full and proper financial disclosure
• Be prepared to compromise and to consider proposed solutions carefully before committing
• Ideally, get to know your mediator a little and try to strike a rapport

Any separation agreement drafted as a result of mediation must be carefully reviewed by your lawyer before you sign it—but do not delay, as your ex may backtrack.

Why would you choose family mediation?

There are many good reasons to choose mediation for family law matters over a lengthy court process that ends up at a trial:

• It’s quicker and less expensive than court: mediation can begin at any time, unlike court hearings, which can take many months to schedule. Family lawyers charge by the hour for their time, so court action involving multiple appearances can get very expensive.
• You have more control over the outcome: with a court trial, a judge decides on the outcome. At mediation, nothing gets signed unless you agree to it, so you remain in control of the process. The mediator tries to facilitate an agreement, but will not impose it on you.
• The outcome remains private: court proceedings are on public record, but the results of mediation remain private and confidential. Even if no resolution is reached, discussions held during mediation cannot be used as evidence at a trial.
• It helps to preserve relationships: court trials are adversarial, with a winner and loser. With mediation, both parties can “win” and walk away with their relationship intact. This is especially important when co-parenting is necessary after a separation.
• It remains informal: the court system is highly structured and formal, which can be intimidating. During mediation, there are a few rules to follow but the entire process is less daunting.

Is family mediation voluntary?

Family mediation can be voluntary or court-mandated (compulsory).

If you want to mediate and your partner refuses, it is possible to obtain a notice to mediate from the court, which compels the other party to attend mediation.

Of course, it does not compel the other party to sign an agreement.  Nor does it compel the person to attend in person. A representative who is familiar with all relevant facts, has full authority to settle, and can contact the other party for instructions can attend mediation on behalf of the other party.

Note that if the subject of the notice to mediate has filed for a protection order under the Family Law Act, he or she may be exempt from mediation.

Usually, too, a pre-mediation call will be arranged. If the mediator determines that mediation should not proceed because it is inappropriate or would not be productive, the planned mediation may be cancelled.

Common Law FAQ

What are the typical misunderstandings about common-law marriage in BC?

Under BC law, if you have lived together with your partner for two years, you have the same rights and responsibilities as married couples.

However, many individuals in common-law marriages are unaware that they have the same rights during a separation. This can mean that they miss out on financial support, property division and parenting rights.

Some of the most common misconceptions about common-law marriages are as follows:

• You must be separated for a year before starting legal proceedings

This is not correct. A judge in BC does not have to sign any paperwork before you decide to separate but in order to file for an uncontested divorce you have to have been separated for one year so it is important to keep track of the date you agreed to separate. It is still a good idea to consider preparing a separation agreement after separating. This may provide a concise plan to address child custody, parenting time, and support orders as well as protection orders if necessary.

• You need the consent of your partner

Even if your spouse disagrees with the need to separate, the judge can still sign an order in BC—providing you can show that the relationship is irretrievably broken (or you have been subject to cruelty or adultery) and you meet the residency requirements.

• Child support ends at 19

The “age of majority” is 19 in BC. While in many cases, the obligation to pay child support ends at this age, it is not necessarily the case. A dependent may require further financial assistance due to higher education needs or a disability or illness, for instance.

What are the differences between common law and marriage in BC?

With marriage, there is an official ceremony and a certificate is provided to prove that the couple is legally married.

A common-law relationship is similar in almost every aspect of a marriage, except for the formalities.

It is important to understand whether your relationship qualifies as a “marriage-like” relationship. If it qualifies under the BC Family Law Act, it provides the same rights and responsibilities as married spouses enjoy.

You are considered a common-law spouse under the Family Law Act regardless of gender if you:

• Lived together in a marriage-like relationship for over two years, or
• Have a child or children together

Besides having a child together, a “marriage-like relationship” generally means some or all of the following:

• You purchased a home or other property together
• You are physically intimate
• You share finances for general expenses
• You provide financial assistance to each other
• You attend social gatherings as partners
• You buy gifts for each other
• You attended relationship counselling together

If you are considered a spouse under common law, you could face the same obligations as a married person, such as spousal support, child support, and equal marital property division if the relationship breaks down.

Some common-law partners create a cohabitation agreement to make their rights and obligations to each other clear. This should be drafted professionally by a family lawyer to be legally enforceable.

How long must you live together to be “common law” in BC?

Under the BC Family Law Act, for your relationship to be considered a “common-law” marriage, you must have lived together continuously for at least two years OR less than two years if have a child together.

How do you prove a common law relationship in BC?

A common-law relationship must be “marriage-like” according to the Family Law Act of BC. You must also either have a child together or have been living with each other for a minimum of two years.

The court will consider several factors if you want to get your relationship recognized as a common-law one. You should be able to show some of the following:

• Shared ownership of the property you live in
• Joint leases or rental agreements
• Financial support for each other, e.g., shared bill payments
• Official ID showing that you both reside at the same address (e.g., driver’s licenses or insurance policies)
• Attendance as a couple at social gatherings
• Gifts bought for each other on important occasions

Collaborative Divorce FAQ

What are the benefits of collaborative divorce?

A collaborative divorce is one where lawyers representing each party will meet to negotiate on the terms of the separation.

There are several important benefits to this over a court trial, most notably:

• Saves time and expense: the collaborative process can begin immediately (no court hearing needs to be scheduled) and is a more targeted approach to settling, with fewer time-consuming procedures than court processes.
• Retain control: if you ask the court to decide, you lose control over decisions. With divorce collaboration, you and your spouse decide what’s agreeable.
• Less adversarial: collaborative discussions are generally less adversarial and aim for a mutually beneficial solution, unlike a court trial, where one side wins and the other loses.
• Preserves relationships: during collaboration, couples discuss matters—the communication avenues remain open and this helps to preserve relationships. With litigation, communication channels are often closed except between lawyers.
• Better for children: if the parents are on speaking terms and can collaborate, this is generally better for the children than an adversarial court battle.
• Privacy: the outcome of collaboration remains private and confidential, unlike a court trial where the records are public.
• Lower stress: courtrooms can be stressful places for people not used to them. Collaboration usually takes place in lawyers’ offices, which is less formal and stressful for most people.

How to start the collaborative divorce process in BC

A collaborative divorce can save many of the stresses and strains of a litigated divorce. To start the process, you will need to firstly agree with your spouse that a divorce is the best way forward.

A collaborative divorce only happens with the consent of both parties and openness to negotiate.

If you agree to divorce, pick a good moment to discuss the many benefits of the collaborative process (saving time, saving expense, maintaining the relationship, less stress, etc.)

Once you agree about engaging in collaboration, you will both need to hire divorce lawyers to begin the process. It can begin any time after you separate but bear in mind that no divorce order can be signed by a judge in BC unless you meet the residency requirements and have legal grounds for a divorce.

Child Custody FAQ

How is child custody determined in BC?

Decisions about child custody (both decision-making responsibilities and parenting time) depend on the best interests of the children in BC.

Judges here are guided by the federal Divorce Act, whereby the child’s physical, emotional, and psychological safety, security, and well-being are given preference over the needs or wishes of the child’s parents or guardians.

A judge will consider the following before deciding on custody matters:

• The child’s needs, according to his/her age and stage of development
• The child’s views and preferences
• The child’s relationship with each parent (and with other important people in their life)
• The parents’ ability to communicate with each other about parenting matters
• Any court action or order relevant to the child’s safety and well-being
• Any history of family violence, substance abuse, or serious mental health issues

Can a mother move a child away from the father in BC?

To relocate lawfully with a child in BC, 60 days’ written notice must be provided to other guardians and important people in the child’s life named under an agreement or court order.

Even if you do not plan to relocate with the child, a relocation notice should be provided unless you are exempted by court order—for instance, in the case of a risk of family violence occurring.

If there is no objection, the planned relocation can continue with an adjustment to the parenting arrangements. If, however, another guardian objects to the relocation, it can lead to a court hearing where a judge will need to decide in the best interests of the child.

At what age, in BC, can a child decide which parent to live with?

A child’s best interests lie at the centre of all decisions regarding custody and parenting in BC.

One important consideration for the court when assessing the physical, emotional, and psychological safety, security, and well-being of the child is age. If the child is mature enough to express a preference for the custody and parenting arrangement, it will be a factor in the judge’s final decision.

There is no single, defined age at which children can choose which parent to live with following a separation. However, a psychologist or counsellor may assess the child’s level of maturity. Generally speaking, more weight is given to the preferences of a child of teenage years than a younger child.

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