The Defendant in a Divorce Proceeding

The topics in the Dial-A-Law series provide general information on legal issues within the Province of Alberta. The purpose of this topic is to inform you of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.

This topic will discuss the defendant in a divorce proceeding. If you have been served with a Statement of Claim for Divorce, your spouse is notifying you that they have started a divorce action against you. You are the Defendant in this action. Your spouse who started the divorce action is called the Plaintiff.

Plaintiff`s Statement of Claim

The Statement of Claim for Divorce sets out the claim and relief asked for by your spouse (the plaintiff). The Statement of Claim may contain the grounds for the divorce. Divorce is granted where there is a breakdown of your marriage. Breakdown of a marriage can be proved by either: (1) 1 year of separation; (2) adultery; or (3) mental or physical cruelty. If you decide to challenge the grounds of the marriage breakdown, then you must prove them not to be true.

Defendant`s Action

As a Defendant, you may either (a) agree with the claims and the relief asked for by the Plaintiff in the Statement of Claim for Divorce or (b) not agree with the claims in the Statement of Claim. You may also choose to do nothing.  In this case, the divorce action will continue without your involvement. The name of the Plaintiff’s lawyer can be found on the back of the Statement of Claim. Also, on the back page is a Notice to the Defendant giving the time period in which you have to respond to the action. Contact your spouse’s lawyer and tell them what you intend to do.

 

Agreeing with the Plaintiff’s Statement of Claim

If you agree with the Plaintiff’s claims and the relief asked for in the Statement of Claim for Divorce, the divorce action is considered uncontested. You may want to file a Demand of Notice to ensure you are notified of the progress of the action. This document says that you are not objecting to anything in the claims or contesting the divorce but simply asking to be informed of what is happening.

Disagreeing with the Plaintiff`s Statement of Claim

If you disagree with the Plaintiff`s claims and the relief asked for in the Statement of Claim, you are contesting the divorce. In this case you must file a Statement of Defence with the Court to deny or object to some or all of the claims made by your spouse. You should consult with a lawyer if you are planning to defend against the action. Questioning may be required which is complex and can take months.

Time Limits for a Defendant

If you live in Alberta, you will have 20 days to reply to the Statement of Claim.

If you live outside of Alberta, but in Canada, you will have one (1) month to the Statement of Claim.

If you live outside Canada, you will have two (2) months to the Statement of Claim.

Do not ignore these documents or the time periods by which you must respond. You may lose the opportunity to contest the claims made in the Statement of Claim for Divorce you if you miss the deadline.

 

Notice to Disclose/Application

Where you are served with a Notice to Disclose/Application, you have 30 days to provide certain information requested in the Notice. Often the request is for information about your financial situation.

There are also consequences for failing to provide the requested information such as documents or your financial situation. The failure to do so can force the Court to impose a penalty or sanction against you. You should seek advice from a lawyer on how to present your evidence for your Court date.

Children

  • Child Support Orders: As it is every parent’s responsibility to provide for their child, a Court may issue a Child Support Order against any parent to pay for the support of the children. Either or both spouses may apply to the court to enforce a Child Support Order against the other spouse. The Court will consider certain guidelines that will determine if and how much a parent will pay towards supporting the child. The amount of minimum child support to be paid is set by the Federal Child Support Guidelines. Special or out of the ordinary expenses can be agreed to be paid by the parents or can be ordered by a Court. The amount of special expenses is generally shared by the parents based upon their income and is paid in addition to the basic child support. If the Court made a Child Support Order after May 1, 1997, the parent with whom the child lives is not required to claim the child support on their income tax return. Also, the parent who makes the child support payments under the Child Support Order cannot claim the child support payments as a deduction. You may apply to the court to make a change to your Child Support Order if there is a change in circumstances of either the parents or the children.

Note that all applications for Child Support Order in the Queens Bench Court must first be submitted to at a Dispute Resolution Officer (DRO) first. If the child support application is made in the Provincial Court, both parties may agree to go through a DRO instead. Any agreements made with a DRO may be final and binding by both parties signing a consent order. To book an appointment with a DRO you may contact Calgary Court Centre at 403-297-6981.

  • Parenting and Contact Orders: The parent’s may apply for Parenting Orders to determine their responsibilities, time and decision-making process on their children’s upbringing and well being. The parents are encouraged to agree on parenting and contact decisions with the children if possible, bearing in mind that the children are entitled to maximum contact with both parents. In a case where parents cannot agree on such matters, a Court will make a decision based on the best interests of the children. Contact Orders are meant to schedule time for children to spend time with other people in their lives, besides their parents. Contact Orders will also be made in the best interests of the child. A parent can apply for a Parenting or Contact Order by filing the required forms at a court where an action has already been started against the other spouse. If no action has been started, the application may be filed at any court in Alberta.
  • Parenting after Separation Seminar: If you are contesting the divorce, you must attend a Parenting after Separation You must attend within 3 months of being served with the Statement of Claim. The plaintiff must have attended the seminar before bringing any application to the Court. Proof of attendance is required by Clerk of the Court before your divorce action can be scheduled for trial. If you are not challenging the divorce or if your children are over the age of 16 years, you are not required to attend the Parenting after Separation seminar. You must confirm in writing that you and your spouse entered into an agreement settling all issues between you.

 

There are some extraordinary cases where you may be released from taking the parenting course.  Each case will be dealt with on an individual basis. For example, if there is family violence, kidnapping or abduction, or where one parent has without the consent of the other, taken actual custody of the children, there may be an exemption. However, such exceptions may still be requiring the released parent to attend the course for some time.

Spousal Support

A spouse may claim spousal support. The Support Order awarded is decided on a case-by-case basis. The Court will consider the current situation and needs of each spouse and the role that each spouse played or contributed towards the marriage. Spousal support received by a spouse must be declared as income on their tax return. The spouse who pays support may also deduct the payments made on his or her annual tax return. You should consult a lawyer for more information on spousal support.

 

Court Costs

The plaintiff may also ask the Court to award costs of the action to them. If this claim is successful, the Defendant will have to pay some or all of the Plaintiff’s Court costs.

Dial-A-Law is a Calgary Legal Guidance public service project funded in part by the Alberta Law Foundation.