Can You Get Divorced in BC If Your Spouse Won't Sign or Can't Be Found?

Many people put off a divorce because their spouse will not sign, has stopped responding, or has moved away without leaving an address. Under Canadian law, neither refusal nor absence stops a divorce, although each adds steps.

This article focuses on the service problem: how the divorce papers must be delivered, what happens if your spouse does nothing, and how to ask the court for permission to serve another way when personal service is not possible.

Your spouse's consent is not required

Under section 8 of the Divorce Act, a court may grant a divorce on the ground that the marriage has broken down. Breakdown is established if the spouses have lived separate and apart for at least one year before the divorce is decided and were separated when the proceeding started, or if the other spouse committed adultery or treated you with cruelty that makes continued living together intolerable.

Nothing in that test requires the other spouse to agree. A joint application needs both signatures, but a sole application does not. A BC court can hear the case if either spouse has been habitually resident in BC for at least one year before the proceeding starts.

For the overall process, see our guide on how to get a divorce in BC.

Personal service: the usual first step

A sole divorce in the Supreme Court starts with a notice of family claim. Under Rule 6-3, unless the court orders otherwise, a notice of family claim must be served by personal service: a person who is not a party and who is at least 19 years old hands the document to your spouse. You cannot serve it yourself, but a friend, relative or process server can.

Service is then proved by an affidavit of personal service. Once served, your spouse generally has 30 days to file and serve a response to family claim.

If your spouse ignores the papers

A spouse who refuses to sign anything or simply does nothing after being served does not stop the divorce. If no response is filed within the time allowed, the case is an undefended family law case under the rules. You can then apply for judgment by requisition, often called a desk order divorce, where a judge reviews the materials without anyone attending court.

Under Rule 10-10, that application includes proof that the case is undefended, a registrar's certificate that the pleadings are in order, proof of service of the notice of family claim, and an affidavit for divorce. The judge can still require you or your lawyer to attend, or ask for more evidence. Our article on desk order divorce in BC walks through those documents.

One condition can still hold things up: under section 11 of the Divorce Act, the court must be satisfied that reasonable arrangements have been made for the support of any children of the marriage, and it will stay the divorce until they are.

If your spouse is avoiding service or cannot be found

Rule 6-4 deals with this directly. If it is impracticable to serve a document personally, or if the person cannot be found after a diligent search or is evading service, the court may, on an application without notice, make an order for substituted service allowing an alternative method.

The rule does not list the methods. The court decides what to permit, based on your evidence about how your spouse can actually be reached. If the court permits service by advertisement, the advertisement must be in the prescribed form, Form F11. For other methods, a copy of the substituted service order is generally served with the documents.

What the court will want to see is the search, and evidence of it. A useful affidavit typically covers:

• Last known addresses. Home, work and mailing addresses, and what happened when you tried them.
• People who may know. Relatives, friends or former co-workers you contacted, and what they said.
• Electronic contact. Email addresses, phone numbers, messaging apps or social media accounts your spouse is known to use, and whether they are still active.
• Attempts at service. Dates, times and outcomes of each attempt, including any sign your spouse is avoiding the process server.

Because the personal service rule applies "unless the court otherwise orders", a court can in an unusual case make a different order about service. That is exceptional and depends heavily on the evidence, so discuss it with a lawyer before you apply.

If your spouse lives outside BC

Rule 6-5 allows a notice of family claim to be served on a person outside BC without leave where the court has jurisdiction under, among other provisions, section 3 or 4 of the Divorce Act. Service in another country can raise additional requirements, so check how documents are served there before you send anything.

Timing points to watch

• The notice of family claim expires. It stays in force for 12 months. If your spouse has not been served by then, the court can renew it, but an application is needed.
• The one-year separation. You can file during the first year, but the court cannot decide the divorce on separation grounds until a full year has passed.
• When the divorce takes effect. Under section 12 of the Divorce Act, a divorce generally takes effect on the 31st day after the judgment.
• Other claims. A divorce order does not settle property or spousal support. If those are unresolved, check the Family Law Act time limits that start on the date of the divorce judgment.

Stuck on service? Get the divorce moving

Our family lawyers can prepare a sole divorce claim, arrange service, and bring the application for alternative service or a desk order divorce when your spouse will not cooperate.

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