Family and Divorce Law
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Yes—the mere fact that your spouse lives outside of British Columbia is not a barrier to applying for an uncontested divorce in British Columbia. The core issues are whether the British Columbia court has jurisdiction over the divorce and whether service on the out-of-province spouse is properly executed and proven.
The British Columbia court in English v McCurdy, 2019 BCSC 96 clarified that the metric for jurisdiction is ordinary residence, rather than requiring both individuals to be present within British Columbia:
“The Divorce Act sets out the jurisdictional requirements with respect to residency that Ms. English must establish before this Court has the ability to award any divorce and corollary relief: 3 (1) A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding. 4 (1) A court in a province has jurisdiction to hear and determine a corollary relief proceeding if: (a) either former spouse is ordinarily resident in the province at the commencement of the proceeding.”
The same ruling states even more clearly that establishing the residency requirement for just one party is sufficient:
“The residency requirement need only be established for Ms. English, and not both parties, in order to find the necessary jurisdiction under the Divorce Act”
Therefore, if one of the spouses has been “ordinarily resident” in British Columbia for at least one year immediately preceding the commencement of the proceeding, the residence of the other spouse in another province or another country is not in itself a barrier.
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Service on a Spouse Outside of British Columbia is Permissible
In S.R.L. v K.J.T., 2014 BCSC 597, the court explicitly stated that where jurisdiction exists, service outside of British Columbia is permissible without prior leave (court permission). The court cited the text of the rule:
“A notice of family claim, counterclaim, petition or other document in a family law case may be served on a person outside British Columbia without leave if the court has jurisdiction in relation to the family law case under section 10 of the Court Jurisdiction and Proceedings Transfer Act, section 74 of the Family Law Act or section 3 or 4 of the Divorce Act.”
Therefore, if one of the spouses has been “ordinarily resident” in British Columbia for at least one year immediately preceding the commencement of the proceeding, the residence of the other spouse in another province or another country is not in itself a barrier.
British Columbia vs Ontario Divorce Law: Property Division, Debt, Parenting, and Key Differences
Service on a Spouse Outside of British Columbia is Permissible
In S.R.L. v K.J.T., 2014 BCSC 597, the court explicitly stated that where jurisdiction exists, service outside of British Columbia is permissible without prior leave (court permission). The court cited the text of the rule:
“I have concluded that this Court has jurisdiction over this family law case, it follows that leave was not required for service outside of British Columbia. I therefore dismiss K.T.’s application to set aside service of the notice of family claim.”
The same point is evident in Kanwar v Kanwar, 2010 BCCA 407. In that case, the spouse was in India, but the Court of Appeal stated that to establish jurisdiction in British Columbia, the required service and ordinary residence must be proven, not that the defendant must strictly be in British Columbia:
“To establish the jurisdiction in the British Columbia Supreme Court to deal with the parties’ divorce, Ms. Sukhija was obliged to prove not only service, but ordinary residence in British Columbia for more than one year immediately preceding the commencement of the proceedings and grounds that would entitle her to a divorce”
Because the residency condition was met, the court stated:
“Those facts were not contested, and satisfy the residence requirements for jurisdiction.”
A case dealing more directly with an uncontested divorce is Singh v Kaur, 2019 BCSC 2184. There, the respondent did not reside in British Columbia and was supposed to have been served in India. The court did not reject the divorce because the respondent was outside the province; it rejected it because it was not satisfied with the personal service and other documentation:
“There are two main deficiencies on this application for a divorce. First, I am not satisfied that the respondent has been personally served with the notice of family claim. Second, without a marriage certificate or sufficient proof of the marriage, I am not satisfied that there is a valid marriage between the claimant and the respondent for which I may grant a divorce.”
The court also noted:
“The respondent must be served under circumstances that allow the Court to conclude that the respondent knew or reasonably should have known of the proceedings”
Concluding:
“As a result, I decline to grant the order at this time.”
The phrase “at this time” is important: it means the obstacle was a deficiency in proving service and documentation, not the fact that the spouse resided outside the province.
Therefore, the short answer is: yes, you can apply for an uncontested divorce in British Columbia even if your spouse lives outside of British Columbia, provided that:
If the required ordinary residence condition does not exist, the court lacks jurisdiction. As stated in English v McCurdy, 2019 BCSC 96:
“Accordingly, this Court has no jurisdiction under the Divorce Act to grant a divorce or any corollary relief under that statue”
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