When spouses separate the main focus is usually on deciding who will care for the children and on dividing property. The actual divorce is almost an afterthought.
In B.C. a spouse can only apply for a divorce if they have been ordinarily resident in B.C. for at least one year. They also have to wait one year from the date of separation unless they have “grounds” for the divorce such as adultery or physical or mental abuse in which case they can apply for a divorce sooner.
A judge in B.C. will only grant a divorce if they are satisfied that proper arrangements have been made for the children.
- Is the parenting arrangement in the children’s best interest?
- Is one spouse paying the amount of child maintenance required by the Federal Child Support Guidelines?
If the judge is not satisfied that these conditions have been met they will not grant a divorce. This can cause problems when the spouses have decided to depart from paying the monthly amount required by the guidelines for some reason.
For example, one spouse may keep a greater share of the family assets in lieu of receiving child maintenance.
Another example is that one spouse may allow another spouse to move with the children provided they are not required to pay child maintenance as their access costs will be higher.
Sometimes you can explain these “special circumstances” to the judge and the judge will grant the divorce but it is up to the judge to decide. Sometimes the parties are unable to obtain a divorce until the children are grown up and are no longer dependent on their parents.
