Getting a BC Divorce When One of You Lives Outside BC

You can get a BC divorce even if your spouse lives in Alberta, Ontario or another country, as long as one of you meets the residence rule. Distance changes the steps, not the legal test.

This guide covers who must live in BC, how a joint application avoids cross-border service, how to serve a spouse abroad, and how affidavits can be sworn when one of you is far away.

Who has to live in BC: the one-year residence rule

Under section 3(1) of the Divorce Act, a court in a province can hear a divorce if either spouse has been habitually resident in that province for at least one year immediately before the case is started. Only one of you needs to meet the test, and where you married makes no difference. How it plays out depends on who moved:

• You live in BC and your spouse has moved away. If you have been habitually resident in BC for at least a year before filing, a BC court can hear the divorce, wherever your spouse now lives.
• You have moved away and your spouse is still in BC. You can still file in BC if your spouse meets the one-year test, even though you no longer live here.
• You arrived in BC recently. You may need to wait until you have a full year here, or look at whether your spouse's province or country is the better place to file.
• Neither of you has lived in BC for the past year. A BC court will not have jurisdiction under section 3(1). The divorce would normally be sought where one of you now lives.

Whether someone is habitually resident in a place is a question of fact. If you split your time between two places, get advice before filing in either. If divorce cases between the same spouses are started on different days in two Canadian courts that would each have jurisdiction, and the first is not discontinued, the court where the case was started first has exclusive jurisdiction and the later case is treated as discontinued (section 3(2)).

If you married abroad and the question is proving that marriage, see married abroad, living in BC: getting a divorce here. This article deals with the different problem of one spouse living outside BC now.

The simpler path: a joint application

If you both agree to the divorce and on every other issue, you can apply together. Under the Supreme Court Family Rules, a joint notice of family claim (Form F1) does not have to be served on anyone (Rule 2-2(2)), which removes the hardest cross-border step. A joint case stays undefended unless one of you files a notice of withdrawal.

Distance does not prevent a joint divorce. The forms can be prepared through the Province's Online Divorce Assistant, filed electronically, and decided by a judge on paper. Our guide to online divorce in BC walks through each step.

Serving your spouse outside BC

If your spouse will not sign a joint claim, you start a sole case with a notice of family claim, which must be served personally unless the court orders otherwise. Rule 6-5(1) allows it to be served outside BC without the court's permission where the court has jurisdiction under section 3 or 4 of the Divorce Act. Rule 6-5(9) then gives three ways to serve:

• The BC method. The same way as in BC: a person who is not a party and is at least 19 hands the document to your spouse.
• The local method. A method provided by the law of the place where your spouse is, if it could reasonably be expected to bring the document to your spouse's attention.
• The Hague Service Convention. In a country that is a party to the 1965 Convention on service abroad, a method provided by or permitted under the Convention. If service is to be made under Article 5 of the Convention, Forms F12 and F13 must be used (Rule 6-5(11)).

Service abroad can also be proved in more than one way, including under the law of the place where it happened (Rule 6-5(10)). Requirements differ from country to country, so find out how documents are served where your spouse lives before you send anything. Once served, your spouse generally has 30 days to file a response (Rule 4-3(1)).

If you know your spouse is abroad but cannot locate them, or they are avoiding service, the court can permit another method of service. Our article on divorce when your spouse won't sign or can't be found explains what the court looks for.

Affidavits when one of you is outside BC

A desk order divorce relies on sworn affidavits, and any affidavit sworn by the spouse who lives elsewhere needs extra planning. Under Rule 10-4(6.1), an affidavit can be sworn by video conference if its last numbered paragraph states that the person was not physically present but appeared by video.

There is an important limit when the person swearing is outside BC. The Law Society of BC's Code says a BC lawyer should not commission an affidavit remotely for someone outside the province unless satisfied there is no other practical way to do it under the procedures where that person is. Often the practical course is for the affidavit to be sworn in person where that spouse lives, following the local procedure. Our guide on who can commission an affidavit in BC explains the options.

Children, support and property across borders

• Child support is still checked. Before granting any divorce, the judge must be satisfied that reasonable arrangements have been made for the support of the children of the marriage, having regard to the guidelines (section 11(1)(b)). That applies wherever the children live.
• Later changes. After the divorce, a BC court can hear a support or parenting application under the Divorce Act if either former spouse is habitually resident in BC when it starts, or if both accept the court's jurisdiction (section 4(1)).
• Effect of the divorce. A divorce granted under the Divorce Act has legal effect throughout Canada (section 13). Whether another country recognizes it depends on that country's law, which matters if your spouse plans to remarry there.
• Property claims. For married spouses, the Family Law Act's two-year limit for property division and spousal support claims runs from the date of the divorce judgment (section 198(2)). See our guide to family law deadlines in BC. Property in another country can need separate steps there.

Spouse in another province or country? Plan service and affidavits before you file

Our family lawyers can confirm whether a BC court can hear your divorce, prepare a joint or sole application, arrange service outside BC, and organize the affidavits so they meet the rules where each of you lives.

Call 604-259-2844 or send us a message to arrange a consultation by video or at our Vancouver office.