Divorce in Alberta: A Step-by-Step Overview
Divorce is the legal process of ending a marriage. While divorce in Canada is governed by the federal Divorce Act
, as Calgary family lawyer Sean O’Neil
explains, the step-by-step process varies depending on which province you live in. Regardless of province, in order to file for divorce in Canada, you must meet these two criteria:
- you must be legally married; and
- your, or your spouse, must have been a resident of the province where you plan to file for at least one year.
The most common ground for granting a divorce is that you and your spouse must have lived separately for one year. However, you don’t need to be living apart to start divorce proceedings.
If you live in Alberta, the divorce process begins with two key steps:
Filing a Statement of Claim
The first step is to file a Statement of Claim for Divorce with the Court of Queen’s Bench. This document contains details such as
- birthdates and addresses of both spouses
- date of marriage
- birthdates of any children
- terms for child custody, child support, and spousal support
You can complete and file the document yourself, or have a lawyer file it on your behalf. Once you’ve filed the Statement of Claim, you become the plaintiff and your spouse becomes the defendant.
Serving the Statement of Claim on the defendant
The second step is to physically deliver (“serve”) the Statement of Claim to the defendant. The statement must always be delivered by someone other than yourself. This person must also be an adult. If the defendant lives in Alberta, they have 20 days to respond.
Contested or uncontested?
If the defendant doesn’t respond, the divorce is considered uncontested and will proceed according to the terms set out in the Statement of Claim. “Most divorces are uncontested,” says Mr. O’Neil. “Very few end up at trial or even at a contested court application. Most are settled between the parties, whether by a separation agreement or a divorce order.”
To contest a Statement of Claim, a defendant files a defence or counterclaim in response to the Statement of Claim, meaning he or she wishes to dispute the terms. A contested divorce is most likely to arise in situations involving child custody, access to children, division of matrimonial property, and requests for child and spousal support.
Uncontested: Next steps
Provided you and your spouse have been separated for at least one year, on the twenty-first day, you can file a Request for Divorce, Affidavit of Applicant, and a proposed Divorce Judgment. These documents must be filed with a clerk at the Court of Queen’s Bench, together with your marriage certificate. Your documents will be viewed by a Justice, who will sign the Divorce Judgment once he or she is satisfied with the evidence presented. A copy will be mailed to you by the clerk, and another copy will be mailed to the defendant.
The Divorce Judgment becomes final 31 days after it has been signed. You can then request a Certificate of Divorce, which is the final document in a divorce action. The Certificate proves that you are no longer married.
Contested: Next steps
Once a divorce is contested, both sides may wish to retain legal counsel to begin negotiations. At this stage, financial information must be exchanged in order to settle issues of support, custody, property, and division of any debts. Negotiations can be carried out through lawyers, mediation, or the courts. Your lawyer may recommend mediation if you and your spouse agree on most issues. Court is a last resort, generally pursued only when one side refuses to co-operate.
In Alberta, the Provincial Court, Family Division has the power to deal with custody, access, and spousal and child support matters. The Court of Queen’s Bench deals with these same matters, as well as issues of property division and divorce. The Provincial Court follows a more informal procedure, thus it is possible for disputes to be resolved more quickly and informally than in the Court of Queen’s Bench.
Will I have to appear in court?
“Because both courts have streamlined the process, most cases don’t need to go to court,” notes Mr. O’Neil. “In fact, the majority of Alberta divorces end up being ‘desk divorces.’ Lawyers submit documents to the court and negotiations continue until a settlement is reached. A Justice then approves the settlement. A trial—with both sides appearing in a front of a Justice—happens only when all other avenues have been exhausted.”
Filing for divorce on your own, without legal representation, is possible but may become a frustrating experience. If you anticipate that your divorce will be contested, the best first step to take is to meet with a family lawyer. He or she will advise you of your rights and obligations, based on your specific circumstances. The goal of a family lawyer is to ensure that you reach a better settlement than you could on your own. This includes after legal expenses have been paid.
is a Calgary barrister and solicitor focusing on family law, adoption law; child custody, child support, divorce, and visitation rights. He can be contacted at 403-910-0401 or www.oneillaw.ca for more information.
Elizabeth Cockle writes and edits for professional services firms and B2B companies. She cuts through the clutter of legalese, financialese, and corporatese to create marketing copy that speaks to clients in language they understand. She can be reached at 416-466-8171 or www.ecwriting.com.