Articles, Divorce, Self-Represented Litigants

How Do I Get a Divorce in Alberta?

Most people have friends or family that have gone through a divorce.  After all, almost 40% of marriages end in divorce in Canada—and the divorce rate is increasing.

Unfortunately, not everyone can afford to hire a lawyer to help them through the divorce process.  Many self-represented litigants do not know where to start when it comes to filing for a divorce.  This article answers some of the basic questions surrounding divorce in Alberta, and provides a step-by-step guide to help self-represented litigants.

We emphasize that this guide provides legal information, not legal advice.  We strongly urge you to call a divorce lawyer at Morrison LLP for a free consultation to see how our lawyers can help you through the divorce process.

Step 1 – Is Divorce Right for your Family?

Most spouses experience marital problems at some point in their marriage.  For example, a recent study found that over half of all married people (aged 25 – 50) have considered filing for divorce at some point.  Importantly, the researchers also showed that the majority of these individuals were glad they did not get divorced in the end.

Section 7.7 of the Divorce Act specifically states that lawyers must advise their clients of options to reconcile their marriage before filing for divorce.  It is a good idea to speak to someone with training or experience in helping spouses with marital differences—for example, a priest, counsellor, or family lawyer—before filing for divorce.

Divorce should always be your last option—especially if you have young children.

There is a great deal of research that shows divorce has negative impacts on children’s development.  For example, children whose parents went through a contentious divorce are more likely to suffer from psychological and behavioral issues, have poorer academic performance, and may even suffer from stunted growth and brain development.

That said, it is not always possible to salvage a marriage.  In that case, it is best to hire a lawyer so that the separation can be handled in the best way possible.

Step 2 – Do You, or Your Spouse, Reside in Alberta?

In order to file for divorce in Alberta, you or your spouse must have lived in the province continuously for at least one year.  If not, you will either need to file for divorce in the jurisdiction where you previously lived, or you will need to wait before filing.

For example, if you and your spouse moved to Alberta from Ontario six months before ago, you could not file a Divorce Judgement in Alberta for another six months.  Instead, you would need to file in Ontario.  That said, if you are in urgent need of court relief, you could still commence divorce proceedings or apply for a court order under the Alberta Family Law Act—but the court would not be able to grant your divorce until at least 1 year has passed.

You do not have to be a citizen of Canada in order to file for divorce, however, you typically must be a permanent resident.  There are exceptions to this rule, for example, if you were originally married in Canada but cannot obtain a divorce in your new place of residence, because said country does not recognize your marriage as valid.

Step 3 – Do You Have Grounds for Divorce?

You can only apply for divorce if you have the appropriate grounds (reason) for divorce, namely: adultery, cruelty, and separation.

1. Adultery – Adultery is when a married person cheats on their spouse by engaging in a sexual act with a third party.  You may file for divorce any time after you find out that your partner has committed adultery. To obtain a divorce on the grounds of adultery, you will need to show that the adultery occurred, either by proving this in court, or by providing an affidavit sworn by the adulterer.
2. Cruelty – Cruelty is when one spouse commits violence, unrelenting verbal abuse, or excessive drug or alcohol abuse against their partner, such that continuing the marriage is impossible. Like adultery, cruelty must be proven to the court before a divorce may be granted.
3. Separation (No-Fault) – Separation is when you and your spouse have lived apart for at least 1 year prior to the granting of a Divorce Judgement. This is sometimes called a “no fault” divorce, because neither spouse needs to admit to any wrongdoing. Over 96 percent of divorces in Canada are no fault divorces.

a. Spouses are able to resume their relationship for up to 90 days during the 1 year separation, to try and reconcile their marriage.

b. Spouses can live separately in the same household, provided that they are no longer living together as spouses.  Typically, they would need to occupy different bedrooms, and would separate their finances.  This is true even if they have children together.

Step 4 – What Kind of Divorce?

In Canada, marriage is not just a religious ceremony or romantic gesture—it is a legal relationship between spouses.  Divorce ends this legal marriage relationship.

The Canada Divorce Act outlines when courts may grant a divorce.  It also specifies what kind of orders the court may grant during divorce litigation, which include parenting, child support, and spousal support orders.

There are three types of divorce: joint divorce, uncontested divorce, and contested divorce.

1 – Joint Divorce – Spouses can file for a joint divorce if they agree to the terms of the divorce before filing.  There are many benefits to filing for a joint divorce, including:

• It is usually faster, because you can fill out the documents together with your spouse.
• It is often cheaper, because you do not need to file as many documents as you would during a contested divorce.
• It is more convenient, because you do not have to hire a process server to serve the documents on your spouse.
• As an added bonus, there is not a 30 day-long appeal period after the divorce is granted, meaning that your divorce is finalized sooner.

2 – Uncontested Divorce –  In an uncontested divorce, one spouse starts the divorce proceedings by filing a ‘Statement of Claim for Divorce’ and serving it on the other spouse.

The divorce is uncontested if the other spouse files a ‘Demand of Notice‘ (a document saying they will not contest the divorce, but simply wish to be served with all documents), or if they do nothing.  If this is the case, then the spouse who filed for divorce is free to file the divorce documents without the opposing party.  The downside is that this creates more paperwork, and you still need to serve the documents on your spouse.

3 – Contested Divorce –  Most divorces are contested in Alberta.  In a contested divorce, one spouse initiates the divorce by filing a ‘Statement of Claim for Divorce’ and serving it on the other spouse.  You will need an unrelated third party (such as a process server) to deliver the document to your spouse.

If the other spouse files a ‘Statement of Defence’ (a document stating that they disagree with some or all of what their spouse is requesting from the court) and/or a ‘Counterclaim for Divorce’ (a document asking the court for relief from their spouse), then the divorce is contested.

Remember, just because a divorce is contested, this does not mean that you will have to go to trial.  Over 95% of all divorces are resolved before trial, often by way of mediation or negotiation.

Step 5 – File & Serve a ‘Statement of Claim’ for Divorce

If you meet the residency requirements and grounds for divorce, then you may file a ‘Statement of Claim for Divorce’ in Alberta.  Lawyers will often file this jointly with a ‘Statement of Claim for Division of Family Property’, so that all of the marital issues can be worked out at once.

The forms can be found online on the Alberta Court of King’s Bench website and must be filed with the Alberta Court of King’s Bench.  The Court charges a filing fee of $250.00 to process a ‘Statement of Claim’.

Once you receive a filed copy of the ‘Statement of Claim for Divorce’, you will need to “serve” it on (personally deliver it to) your spouse.  You cannot serve the document yourself, and will need to have a family member, friend, or process server deliver the document.  Typically, a process server will cost $200.00 – $400.00, although the price is higher in rural or remote locations.

Once the ‘Statement of Claim for Divorce’ has been served, the Defendant may file a ‘Statement of Defence” or a ‘Counterclaim For Divorce’ as noted above.

Step 6 – Exchange Financial Disclosure With Your Spouse

In divorce or family litigation, each spouse has the obligation to provide the other with complete financial disclosure.  This right is protected by the Alberta Rules of Court and in the common law.  Any agreements made without proper financial disclosure may not be enforceable, so it is very important that you complete this step.

The amount and type of financial disclosure is different in every case.  However, spouses are generally obligated to provide proof of their income—tax returns and paystubs—and proof of their assets and debts, usually by way of a sworn statement and financial statements.

If you own a business, then your disclosure requirements will be even higher.  Typically, you will be obligated to provide the corporation’s tax returns, financial statements, and documents relating to any shareholder loans or money paid to friends or family members.  This is the bare minimum.  In some cases, the Court may require you to provide the company’s general ledgers, bank statements, and payroll information.

Failure to provide enough financial disclosure can result in consequences for the withholder.  For example, a failure to disclose assets or liabilities could be used to open-up a previously signed Prenuptial Agreement or Separation Agreement.  It could also result in paying more child or spousal support than you otherwise would have paid.

Despite the risks, there are times when a spouse fails to provide their disclosure in a timely fashion.  In this case, a lawyer may need to take action to enforce their client’s disclosure rights by attending court or scheduling a questioning of the non-disclosing spouse.

Step 7 – Resolve the Legal Issues

The best method of dispute resolution will primarily depend upon the complexity of the situation and the level of conflict between the spouses—there is no “one size fits all” solution.

1. Mediation – In a divorce mediation, both spouses meet with a mediator. The mediator is a neutral third party who helps spouses work out their legal issues, and create their own settlement. Mediation works best for spouses who can behave civilly, and whose issues are not particularly complex.

The main benefits of divorce mediation are:

• • • Mediation is often cheaper than litigation, as the spouses share the costs of the mediator, and have an incentive to resolve their differences quickly.
    • Mediation is often faster than litigation. Typically, it only takes two mediation sessions for spouses to settle the main issues.
    • Spouses are more likely to follow mediated agreements, as they themselves created the agreement.

2. Negotiation – Negotiation is best facilitated by lawyers. This is because your lawyer will be familiar with your case, and can advise you of your legal rights and risks. Even after both spouses “lawyer-up”, the divorce can often be settled through a friendly four-way meeting. Once the spouses have reached an agreement, the lawyers can prepare a Separation Agreement.  Once signed, the spouses can file for a joint divorce.

3. Litigation –  Litigation is best conducted by lawyers. This is because your lawyer will know how to manage the litigation process and represent your interests in court. Even after litigation has commenced, the spouses are always welcome to resolve their dispute amicably.  If not, the Court will award a Divorce Judgement and Corollary Relief Order which will finalize the divorce.

Litigation is always a last resort.  This is because litigation is very expensive, stressful, time-consuming, and outcomes cannot be guaranteed.  Even a “rock solid” case can fall flat in trial.  That said, sometimes divorce litigation is necessary to resolve complex legal issues or high-conflict family matters.

Step 8 – File for Divorce

In addition to the Statement of Claim which you filed to start the divorce proceedings, you will need to file a number of documents in order to conclude the divorce proceedings.  These documents can be found online, and include the following:

• Affidavit of Applicant for Divorce – If you filed jointly then both you and your spouse would fill this document out together.  If not, then you would prepare this document yourself.  This is your sworn testimony that outlines the terms of the Divorce Judgement as being the truth, the whole truth, and nothing but the truth.
• Request for Divorce – This is a short document requesting the Court to grant a divorce.  You do not need to swear this document.
• Divorce Judgement (and Corollary Relief Order) – This is the order which grants the terms of your divorce.  If you have children, or if there is spousal support, the Judgement will also contain an Order for Corollary Relief.  This just means that it will have terms for parenting, child support, and/or spousal support.

Often times spouses who are divorcing will also own property together.  In this case, you will also need to resolve the property dispute by way of either a Minutes of Settlement, or a Family Property Judgement.

Feel free to call Morrison LLP at 587-758-1099 to speak with one of our family & divorce lawyers, or practicing mediators, to see how we can help you through the divorce process.