Script 122 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.

This script will be helpful if your spouse is about to begin divorce proceedings, or if you’ve already been “served” with or given divorce papers. In most cases, you’ll want to hire a lawyer to represent you, but this script should give you a general understanding of your situation. Note that you only have a limited time to respond to the divorce papers.

What are the divorce papers used to start a divorce?
The documents you’ll receive (or have already received) are called a “Writ of Summons” and “Statement of Claim.” Your spouse, who has started the divorce, is called the Plaintiff, and you are the Defendant. The Plaintiff must arrange for personal service of the divorce papers. This means that the papers must be delivered to you in person. If you’re not available to receive the papers or the Plaintiff has difficulty personally serving you, he or she can ask the court to serve you “substitutionally” by, for example, leaving the papers at your last known address, with your close relatives, or in your mailbox. Make sure you read these divorce papers thoroughly.

Consider consulting a lawyer
Because the Writ of Summons and Statement of Claim could significantly affect your rights, you should consider asking a lawyer to review them with you and to explain exactly what your spouse is claiming. Many family lawyers will explain these documents for little or no charge.

There are strict time limits to respond
It is very important to know that there is a strict time period for you to respond to the papers. The time period for your response varies, depending on whether you reside in or out of BC. If you don’t respond in time, permanent court orders can be made affecting your rights.

The Statement of Claim outlines what your spouse is claiming
It might just be a divorce, or it might include other things such as custody of any children, child and/or spousal support (or maintenance), property division, and/or a restraining order. In court language, these things are called “the relief claimed” or “corollary relief.”

The reasons why your spouse is asking for a divorce will be given
For information on the legal grounds for divorce, refer to script 120 called “Requirements for Divorce and Annulment.” If you don’t dispute the basis upon which your spouse is applying for a divorce, such as a one-year separation, you might not object. On the other hand, if he or she is claiming adultery or cruelty, you might want to fight the action.

Consider carefully the claims made
The Plaintiff’s claims are your spouse’s requests to the court. Your spouse wants the judge to make court orders about these claims. If your spouse is seeking sole custody of the kids, do you feel that joint custody or sole custody yourself is better? If property is to be divided, do you want half or more than half? If you dispute any of the claims, you must do so in a Statement of Defence, explained a little later. If you wish to make claims of your own, you must do so in a Counterclaim, also explained later on in this script.

In most cases, you should file an “Appearance”
You should respond to the Statement of Claim by having a document called an “Appearance” submitted or filed in the court registry that issued the divorce papers. The Appearance also needs to be delivered to your spouse’s lawyer (if he or she has one), so that you can be notified in future of subsequent steps in the proceeding. You only have a short period of time to do this – specifically seven days from the date when you were personally given the divorce papers or substitutionally served, if you were served in BC.

What happens if you don’t file an Appearance?
If you simply ignore the divorce papers, an order can be made without you being notified.

What if you don’t agree with what’s being asked for in the Statement of Claim?
Then you can file a second document called a “Statement of Defence.” Through your lawyer, you would file this if you seriously object to any statements made by the Plaintiff in the Statement of Claim. Be aware, however, that filing a Statement of Defence instantly changes the proceeding from an “uncontested divorce” to a “contested divorce.”

What if you want to make your own claims?
If you have claims of your own that you want to make, for example, for child custody, child support, spousal support, division of property or a restraining order, you must file a document called a Counterclaim, either separately or attached to your Statement of Defence.

A hearing is arranged after a Statement of Defence is filed
After you’ve filed the Statement of Defence, the court registry will contact you and set a time for a hearing (sometimes called a case conference). In most cases, you must attend this hearing before you can make any court applications or set a trial date. This hearing is quite informal. It gives the judge, or a person called a “Master,” the chance to talk to both you and the Plaintiff – and your lawyers, if any – to see if some of the issues can be resolved. For example, a wife might have said in her divorce documents that she wants sole custody of the children, but she might actually be agreeable to sharing custody with her husband.

The hearing is an excellent opportunity to tell the judge what you really want
Everything you say is absolutely confidential and cannot be repeated outside the hearing room or used later. The judge won’t make any decisions, however, unless you and your spouse both agree.

When will the divorce be granted?
The final divorce hearing can be granted one year after the date you and your spouse separated, as long as proper arrangements for the financial support of the children have been made. Where matters are in dispute, a trial might not take place for at least a year after the Statement of Claim is filed. So you can get divorced, and still have a trial later on unresolved issues such as property division and child custody. Of course, if you and your spouse agree on these things, you can consent to an order stating your agreement. Note that even though a divorce order might use the word “permanent,” the court may be willing to change the order regarding custody, child support and the like at any time in future, if there’s a substantial change in circumstances.

What is an “interim application” or “interim motion”?
Before the final divorce hearing or trial, your spouse might make an interim application or interim motion in court. Typically, these pre-trial applications request temporary or interim maintenance or custody or an order for possession of the family home until trial. Sworn statements from both you and your spouse called “affidavits” are usually used, and the applications take anywhere from 15 minutes to three hours, depending on the complexity of the matter.

Note that each time you go to court, it will cost time and money
The more you can agree on things with your spouse, the easier it will be on each of you. If you need help talking with your spouse, you can contact a mediator. For more information on mediation, refer to script 111 on “Mediation and Collaborative Family Law.”

Can you refuse to agree to a divorce?
No. In most cases, a judge will grant a divorce to your spouse if grounds exist, whether or not you want the divorce. But there are rare situations where a divorce might be refused, for example, if the divorce means the termination of pension benefits a spouse might receive.

The divorce order takes effect 31 days after it’s signed
There’s an opportunity to appeal the order, but that’s very rare. Also, reconciliation within the 31-day period will cancel the divorce order.

What are your rights after the divorce is granted?
If your divorce order doesn’t grant relief such as spousal support or division of property (which are your rights as a spouse) and you decide that you want to make these claims, you must claim these rights within two years after the divorce has been granted. After two years have passed since the divorce order was made, you are no longer legally a spouse for these purposes entitled to make these claims.

[updated January 2008]

Dial-A-Law© is a library of legal information that is available:

• by phone, as recorded scripts, and
• in writing, on the CBA BC Branch website.

To access Dial-A-Law, call 604.687.4680 in the lower mainland or 1.800.565.5297 elsewhere in BC. Dial-A-Law is available online at www.cba.org/bc in Public & Media.

The Dial-A-Law library is prepared by lawyers and gives practical information on many areas of law in British Columbia. Dial-A-Law is funded by the Law Foundation of British Columbia and sponsored by the Canadian Bar Association, British Columbia.

© Copyright 1983-2008 Canadian Bar Association, British Columbia