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 discusses divorce proceedings in Alberta.
Alberta Residency Requirement
Alberta has a residency requirement of 1 year before divorce proceedings can be commenced in Alberta. You may want to commence your divorce proceedings in another province if you do not have this residency requirement. You also require certain grounds to divorce your spouse.
Grounds for Divorce
If you are in any of the following situations, then you will have the necessary grounds for divorce;
- You have lived separate and apart from your spouse for 1 year, or
- Your spouse has committed adultery. Meaning that your spouse is in an intimate relationship with someone else, or
- Your spouse was physically or mentally cruel to you making it impossible to continue the marriage.
You do not need to hire a lawyer to represent you, but you are advised to consult with one. There are many important decisions that must be made concerning your children, your property and financial support. If you and your spouse agree on these important decisions, certain documents need to be prepared by a lawyer. These documents can either be court orders or a separation agreement. You and your spouse will both require independent legal advice from a lawyer for the separation agreement to be binding. Where you and your spouse cannot agree on certain matters, a lawyer can assist you in making your claims. Your lawyer will inform you of the divorce mediation services available to resolve any disputes between you and your spouse.
Court Process of Divorce
A Statement of Claim for Divorce filed with the Clerk of the Court of Queen’s Bench will begin the process. There is a filing fee of $260.00 to be paid to the Court.
If you started the divorce action, you are called the “Plaintiff”. The other spouse is called the “Defendant“.
Statement of Claim
The Statement of Claim for Divorce or Statement of Claim for Divorce and Division of Matrimonial Property must provide details about your grounds for divorce and your marriage. For example, birth dates and birthplaces of you and your spouse, the wife’s name at birth, and current addresses must be included. You must also include details of your claim for the distribution of the property you acquired during your marriage. You can also include details of property that may be exempt from property division. If you have an agreement over the division of property include this agreement with the Statement of Claim.
If you and your spouse cannot agree on the division of your property, a matrimonial property action will be started at the same time. It’s advisable that you obtain legal advice regarding property division depending on the complexity of your assets and debts.
If you have children, include details on the parenting arrangement of the children and child support.
Service of the Statement of Claim
Once the claim is filed at the Court House with the Clerk, you must “serve” a copy of the claim on your spouse;
- Your spouse must know that you have started an action for divorce.
- The Statement of Claim must be served personally, however, you cannot personally hand the claim to your spouse. You can either hire a process server to serve the claim or alternatively get another individual to serve the claim on your spouse.
If your spouse cannot be located or is out of the country and you cannot serve them personally, you may apply to the Court for permission to use an alternate method of service. You will need to obtain a Substitutional Service Order from the Courts. An alternate method may be to place a notice in the newspaper where your spouse last resided, or to serve them via social media or email.
Once the Statement of Claim is served, an Affidavit of Service needs to be completed by the person who served your spouse. When the Statement of Claim was served personally, then the Affidavit of Service needs to include a picture of your spouse confirming the person who was served.
Make sure to ask the Court to include the Court costs in your divorce application. This relief can be checked off under remedy sought in the claim document.
Times Limits for Reply to Statement of Claim
Depending on where your spouse lives, he or she will have a time limit in which to reply to the action. If your spouse lives in the province, he or she has 20 days to reply to the claim. If your spouse is out of the province but in Canada, the time limit is one month. If your spouse is outside the country, the time limit is two months.
Disagreement with the Statement of Claim
Your spouse may disagree with your statement of claim, otherwise known as ‘contesting the divorce’. If he or she contests the divorce, they need to file a Statement of Defence.
A Statement of Defence contains objections to some or all of the claims made in your original statement of claim. For example, he or she may object to the grounds for divorce or to your claim for parenting of the children, child support, spousal support or property division.
In addition, your spouse may also file a Counter Claim to make claims against you.
Agreement with the Statement of Claim
Where the divorce is uncontested, there is no Court hearing. Your spouse may simply want to be notified of the progress of the action and will file a Demand of Notice. This means that they are not objecting to anything in the Statement of Claim or contesting the divorce, but simply asking to be informed of what is happening.
Alternatively, your spouse may do nothing and not respond to the Statement of Claim. In that case, you can file a document called Noting in Default. The divorce action can then continue without their involvement via what is known as a “desk divorce”. Here, you would simply apply for a divorce judgment by filing certain forms with the Court of Queen’s Bench. These forms can be found on the Alberta Courts Website (www.albertacourt.ca) and include an Affidavit of Applicant and Request for Divorce.
The documents are reviewed by a Judge who must be satisfied that all the requirements for divorce have been met.
Under the Divorce Act, the Court has an obligation to ensure that children are adequately taken care of by way of appropriate parenting arrangements and child support. The Court will use the Federal Child Support Guidelines to determine the proper support. If an agreement follows the guidelines, the agreement concerning parenting and support will likely be approved and be incorporated into the divorce judgment. The judgment may contain further Orders regarding spousal support, property division and the Court costs. If the Judge is not satisfied, the agreement will not be approved.
If a Judge is satisfied that you qualify for a divorce, you will be granted a divorce judgment. Parenting, child support, spousal support terms of the divorce judgment may be changed or varied even though the divorce is final.
Appeal of Divorce
If either of you wishes to appeal the divorce judgment on a question of law, you must file a Notice of Appeal to the Court of Appeal within 30 days of the divorce judgment.
Certificate of Divorce
Your divorce is final 31 days after the Court grants the divorce judgment, unless there are special circumstances. After the 31 days, you may then apply for a Certificate of Divorce to show when the divorce judgment was effective.
Dial-A-Law is a Calgary Legal Guidance public service project funded in part by the Alberta Law Foundation.