The Divorce Procedure

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The topics in the Dial-A-Law series provide general information on a wide variety of legal issues in the Province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation.

This topic discusses divorce proceedings in Alberta.

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. If you are in 1 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. This means that your spouse had sexual intercourse 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. You will require independent legal advice for the 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. You may want to listen to the Dial-A-Law topic 233 Divorce Mediation.

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 $200 to be paid to the Court. If you started the divorce action, you are called the “plaintiff” and the other spouse is called the “defendant“. If you are the defendant you may want to listen to Dial-A-Law topic 235 The Defendant in a Divorce Proceeding.

The Statement of Claim for Divorce 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. 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. You will need a lawyer to start your claim for property division. If you have children, include details on the custody and access of the children and their financial support. Also ask the Court to include the Court costs in your divorce application.

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.
  • You can personally hand the claim to your spouse or you can hire a process server.
  • You cannot mail the documents.

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. An alternate method may be to place a notice in the newspaper where your spouse last resided.

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 15 days to reply to the claim. If your spouse is out of the province but in Canada, the time limit is 40 days. If your spouse is outside the country, the time limit to reply to the divorce claim will be set by the Court.

Your spouse may contest the divorce or agree with everything in your claim. A divorce trial is held if your spouse contests the divorce. If he or she contests the divorce, a Statement of Defence will be filed. In this document objections to some or all of the claims will be made. For example, he or she may object to the grounds for divorce or to your claim for custody or financial support. If the matter is contested, an Examination for Discovery must be held. You will need a lawyer for this process and it can take months. Your spouse may also file a Counter Claim to make claims against you to be heard at the same time.

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. They are not objecting to anything in the claim or contesting the divorce, but simply asking to be informed of what is happening. Or, your spouse may do nothing. The divorce action will continue without their involvement. You simply apply for a divorce judgment by filing certain documents with the Court of Queen’s Bench. An affidavit must support your application and provide the same kind of information required at a Court hearing.

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 custody and child support. The Court will use the Federal Child Support Guidelines to determine the proper support. If the agreement follows the guidelines, the agreement concerning custody and support will likely be approved and be incorporated into the divorce judgment. The judgment may contain further Orders regarding custody, support and the Court costs. If the Judge is not satisfied, the agreement will not be approved. If the Judge is satisfied that you qualify for a divorce, you will be granted a divorce judgment. Custody, access or child support Orders of the divorce judgment may be changed or varied even though the divorce is final.

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. Your divorce is final on the 31st day 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.