The Desk Order Divorce

Pursuant to the DA and the Supreme Court Family Rules, where only a divorce is sought or all other orders will be proceeding by consent or are unopposed, one or both parties may apply for a divorce through the desk order process. There are two types of desk order process.  The first is the “joint” process under Rule 2-2, in which both parties apply for the order together.  The second is the “sole” process where the action is an “undefended family law case” as defined by Rule 1-1(1). In both cases, the divorce order and any other orders are made without an oral hearing.

The Sole Process

The sole desk order divorce process begins as a normal divorce action but concludes with the divorce order, with or without corollary relief, being pronounced in default. (“Corollary relief” refers to any orders sought in a divorce action apart from the divorce order itself.) The sole divorce process is used one or more of the following circumstances:

  1. there are no other legal matters outstanding between the parties other than a divorce (the parties have no assets, no children and there are no support issues);
  2. all other legal matters between the parties have been resolved (by an agreement, an order of the Provincial Court or an order of a foreign court);
  3. the other spouse is aware of the client’s intentions and either consents or acquiesces to the claim; or,
  4. the whereabouts of the other spouse are unknown.

A contested Supreme Court action may also be resolved by consent by desk order where settlement has been reached on all matters. In such cases, any pleadings in defence or counterclaim must be withdrawn or discontinued in order for the action to qualify as an “undefended family law case” under Rule 1-1(1).

The desk order divorce procedure is as follows:

  • File the notice of family claim in Form F3 under Rule 4-1 and the original, government-issued marriage certificate as usual, and complete the federal Registration of Divorce Proceeding form at the court registry.
    • NOTE: If your client was married in BC, you can order a new “original” from Vital Statistics if your client no longer has theirs, although you will need your client’s written consent to do so. A sample letter is attached at Appendix E.
    • NOTE: If the marriage certificate is in a language other than English, file it with a translator’s affidavit translating the certificate into English.
  • Have the notice of family claim personally served on the respondent.
    • NOTE: If the respondent cannot be located, you will have to apply for an order for substituted service.
  • Finalize the affidavit of personal service in Form F15 (or affidavit of substituted service).
  • Wait until the time period for filing the response has expired, 30 days in the case of personal service or such other period as the court may have stipulated in an order for substituted service.
  • Prepare and file the following documents:
    • Requisition for the order sought in Form F35
    • Draft final order, Form F52
    • Proof that the matter is undefended, usually by a Requisition in Form F17 asking the registry to search for any filed response to family claim or counterclaim
    • Certificate of Registrar, Form F36
    • Affidavit in support of the order sought in Form F38
      • NOTE: This affidavit must be sworn within 30 days of the date the application for the order is filed
    • Proof of service, usually either the affidavit of personal service or affidavit of substituted service.

If there are children of the marriage, a Child Support Affidavit in Form F37 must also be filed, whether the proposed order includes a term for the payment of child support or not.

The application will take 4 to 16 weeks to process, depending on the registry. When processed, the registry will enter the divorce order as endorsed by the judge, and a copy will be available for pick-up.

Most clients are satisfied with a certified copy of the divorce order, but you may also order a certificate of divorce (there is an additional cost for this document).

FPD-11, effective March 19, 2013, provides instructions on a number of aspects of the desk order process and should be reviewed carefully. Unfortunately, the Directive no longer sets out model clauses for Form F52 final orders.  It may take some time, with the relatively new FLA provisions, for a helpful standard clauses to be developed.

The Legal Services Society website contains an excellent summary of the process, as well as blank forms.

The Joint Process

Because of the obvious potential for conflicts of interest, you should not draft documents for the joint divorce process as the joint process is brought by both parties and you cannot act for both parties. In a nutshell, however, the process is as follows:

  • The parties file the notice of joint family claim in Form F1 under Rule 2-2, complete the federal Registration of Divorce Proceeding form, and the original, government-issued marriage certificate at the court registry. The parties are listed in the style of cause as Claimant 1 and Claimant 2;
  • The parties then file the following documents:
    • Requisition for the order sought in Form F35
    • Draft final order, Form F52
    • Certificate of Registrar, Form F36
    • Affidavits in support of the order sought in Form F38, at least one of which must be sworn after the filing of the notice of joint family claim. If there are children of the marriage, a Child Support Affidavit in Form F37 must also be filed, whether the proposed order includes a term for the payment of child support or not.

The application will take 4 to 16 weeks to process depending on the registry. When processed, the registry will enter the divorce order as endorsed by the judge, and a copy will be available for pick-up.

 

Community Discussion

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It is important to note that the Court Registry will not accept the filing of the documents necessary to complete the divorce until it has received the Central Divorce Registry Certificate from Ottawa.  Therefore, it is wise to wait until one has confirmed that the CDR has been received by the Registry before one has one's client execute the Affidavit(s) in support of the divorce.  Otherwise, if the document(s) is executed too soon, it will be more than 30 days old by the time the Court receives the CDR, and one will be required to have them re-executed.