How to Divorce in British Columbia if Your Spouse Cannot Be Found

If you have lost contact with your spouse, you may wonder how you can get divorced when they cannot be told about it. The court process expects the other spouse to be served, but it also has a way forward when that is not possible.

This article explains how service normally works in British Columbia, what a diligent search means in plain terms, and how you can ask the court for another way to serve.

This article covers the law of British Columbia.

How service normally works

A divorce is started by filing a Notice of Family Claim (Form F3) in the Supreme Court registry. After filing, the claimant must serve it on each respondent by personal service unless the court orders otherwise.

Personal service on an individual is made by a person who is not a party and who is at least 19 years of age, leaving the document with the person to be served. You cannot serve the papers yourself.

A document served before 4 p.m. on a day that is not a Saturday or holiday is deemed served that day. Otherwise it is deemed served the next such day.

When your spouse cannot be found

If personal service is impracticable, for example because your spouse cannot be found after a diligent search, the court can permit substituted service under Rule 6-4. You must apply to the court for this.

A diligent search means a real, documented effort to find your spouse. The court decides whether your effort was enough, so keep a record as you go.

• Contact relatives, friends and former employers who may know where your spouse is.
• Check any last known addresses, phone numbers and email or social media accounts.
• Keep dates, names and results of every attempt.
• Keep copies of messages sent and any replies or bounced messages.

If your spouse may be outside BC, a notice of family claim may be served outside BC without leave if the court has jurisdiction under the statutes listed in Rule 6-5(1). In other cases Rule 6-5(2) requires leave of the court.

Time limits and what happens after service

An original notice of family claim does not remain in force for more than 12 months. If a respondent has not been served, the court may on application renew it for up to 12 more months, and may renew again. A long search should therefore be planned with this in mind.

A respondent has 30 days after being served to file a response to family claim (Form F4). A respondent who is served but files no response is not entitled to notice of later court appearances, hearings, conferences or trial, and the claimant can then apply for judgment as an undefended case.

Service is proved by filing an affidavit of personal service in Form F15, or by the respondent filing a response. The court may consider other evidence of service. Proof of service is not required with Form F35 if a response has been filed or the case is a joint family law case.

Other things the court still needs

Not being able to find your spouse does not remove the other requirements. Breakdown of the marriage must be established, which can mean at least one year of separation. Either spouse must have lived in BC for at least one year before the proceeding starts. The court must also be satisfied that reasonable arrangements have been made for any children, including child support.

In an undefended case where divorce is sought, evidence may be given by affidavit unless the court orders otherwise, so no hearing is needed. A divorce takes effect on the thirty-first day after the judgment is rendered.

What to do next

• Start a search log today and record every attempt to locate your spouse.
• Try personal service first if you find an address, using a non-party adult aged 19 or older.
• If service is impracticable, ask the court for substituted service under Rule 6-4.
• Watch the 12-month life of the notice of family claim.
• Ask about help with costs: the court may waive government fees for people who receive Employment and Assistance Act benefits or cannot afford them without undue hardship.
• Speak with a lawyer or a Family Justice Centre about preparing your application.

Frequently asked questions