Articles, Divorce, Self-Represented Litigants

Divorce – FAQ

1. What is a Divorce?

In Canada, marriage is not just a religious ceremony or romantic gesture—it is a legal relationship between spouses.  Divorce is a court order that ends this legal marriage relationship.  Divorce has implications not just for your family, but also for your legal relationship with the Canada Revenue Agency, banks, and insurance providers.

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 in Canada: joint divorce, uncontested divorce, and contested divorce.  Although they all end with a Divorce Certificate, the legal paths are very different.

a – Joint Divorce – Spouses can file for a joint divorce if they agree to the terms of the divorce.  In a joint divorce, there is no plaintiff or defendant, no requirement to serve the divorce papers on your spouse, and no 30 day-long appeal period after the divorce is granted.  A joint divorce is often the cheapest and easiest method of filing for divorce.

b – 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.  In these cases the divorce is uncontested and the plaintiff may file the divorce documents themselves.

c – 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. 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) or a ‘Counterclaim for Divorce’ (a document asking the court for relief from their spouse), then the divorce is contested.

Approximately 95% of contested divorce are resolved before trial, often by way of mediation or negotiation.

2. How Long Does it Take to get Divorced?

It typically takes a minimum of 2 months to obtain a divorce in Alberta.  This is because the Court takes roughly this long to grant a Divorce Judgement after it has been submitted by the spouses or their lawyers. However, the divorce process usually takes longer than this.  Why?  Spouses need to file and serve their divorce commencement documents and resolve their legal issues, before a Divorce Judgement is even considered.

Either way the Court will not grant a Divorce Judgement until the parties prove the “grounds for divorce” at trial, or they show they have been separated for at least 1 year.  Because of this, a divorce typically takes at least one year to resolve from the date of separation.

There are many factors that can increase the time it takes to obtain a divorce, including:

• Whether the spouses can reach an agreement on the terms of the divorce quickly.
• Whether the spouses file for divorce jointly or separately.
• The legal issues in dispute, often divorces that involve children involve more conflict and debate between the spouses.
• The complexity of the legal issues in dispute.  For example, if the spouses own a corporation, or own a number of properties, then it will take more time to determine what is fair.
• What grounds for divorce the parties are applying under, and whether they are contested.  For example, a Court can grant a divorce earlier than one year if one spouse admits to committing adultery.

3. How Much Does a Divorce Cost in Alberta?

It is impossible to predict the full cost of a divorce, because the costs largely depend upon how the parties’ actions.  If everyone behaves reasonably and can agree on the terms of the divorce, then the parties may be able to file for divorce jointly.  This will save them time and money.

If the parties cannot resolve their differences, then litigation may be necessary.  There are many ways to keep your litigation costs down, but the most important tip is to be reasonable and to accept that you will not get everything you want.  Court applications are not wish lists, and typically the Court will recognize that there are two sides to every story.

The average divorce in Alberta costs $9,000.  A simple uncontested divorce and division of family property can typically be completed for between $1,500 and $3,000, not including court filing fees and disbursements.  For example, the Court charges $250 to file a Statement of Claim for Divorce.  Meanwhile, a highly-contested divorce that proceeds to trial can easily cost over $100,000.

Again, this depends largely upon the parties actions, the legal issues in dispute, and the complexity of matters involved.  For example, parties who are dividing a business will have enhanced financial disclosure requirements, which increases costs.  Meanwhile, a family with no children and no property will not likely have to produce many documents for the other party.

If the matter needs to be litigated, then your lawyer will bill hourly for the services.  More time preparing for and attending Court will result in more legal fees.

Feel free to call a family and divorce lawyer, or practicing mediator, at Morrison LLP at 587-758-1099 for a free 30-minute consult.  Depending on the situation, many divorce lawyers will consider payment plans, or deferred payment from the sale of the family home.

4. What is the Difference Between a Separation and a Divorce?

A divorce ends the legal relationship of marriage.  You are free to remarry after you have obtained a Divorce Judgement from the Court, and waited the appropriate appeal period.

Parties can live separate and apart while still legally married.  This can be a temporary arrangement before filing for divorce—a Court will typically not grant a divorce until the parties have been separated for at least one year—or it could be more permanent.  For example, many parties live separately but choose not to apply for divorce because of religious reasons.

If you intend to separate but not divorce, we recommend that you speak with a lawyer about obtaining a Separation Agreement, which will help to protect and solidify your legal rights without the need to apply for divorce.

5. Does Adultery Matter?

Many people are under the impression that if you cheat on your spouse—or if your spouse cheats on you—that this is relevant to the divorce proceedings.  This is untrue.

Adultery (cheating) is not legally relevant to divorce proceedings, and it does not affect your legal rights.  For example, the spouse who has been wronged cannot use this fact as a way to obtain more parenting time with the children, nor are they automatically entitled to spousal support because their spouse cheated on them.

Adultery only matters insofar as the parties apply for the divorce on grounds of adultery.  This is rarely the case, because a finding of adultery typically takes longer to obtain than a 1-year “no fault” divorce.

6.  Can I Get a Divorce If My Spouse Does Not Agree?

By the time spouses separate, both of the parties generally look forward to the divorce.  However, this is not always the case.  Sometimes, one spouse would prefer to work on the marriage, or live separate and apart, rather than apply for divorce.

In Canada, only one spouse needs to apply for a divorce for the Court to grant it.  Your spouse cannot force you to remain married.

If you are looking for a divorce but know your partner will not agree, the first step is to contact a lawyer and discuss your legal rights and strategy.

7.  Who Gets the Children in a Divorce?

If the parents cannot agree on a parenting schedule, the Court will decide where the children live.  There are two aspects to a parenting order:

A – Decision Making – This refers to the rights and responsibilities that each parent has when it comes to making major decisions about their child’s wellbeing—for example, healthcare, education, and religion. In Alberta, most parents share decision making when it comes to big questions, but are responsible for small day-to-day decisions, like what to eat and who to visit, on their parenting time.

B – Parenting Time – This refers to the time that the children spend with each parent. Parenting time is usually exercised in person, however, in when parents live far apart, the court may award extra parenting time over the phone or video-chat.  There are two main parenting types of parenting schedules: primary parenting and shared parenting.

• Primary Parenting – In this schedule, the child lives with one parent more than 60% of the time, while the other parent has parenting time less than 40% of the time. For example, if the child lives with mom, and stays with dad every second weekend, the mom is said to be the “primary parent”.
• Shared Parenting – In this schedule, the child lives with each parent more than 40% of the time (roughly 50:50). For example, the parents exchange the children on a rotating week-on/week-off schedule, then this would be considered a shared parenting arrangement.

When making a parenting order, the court may only consider the children’s “best interests”.  Although this can mean just about anything, Section 16(3) of the Divorce Act lists some helpful factors such as who can provide for the children, who has historically been the primary caregiver, and who is more likely to cooperate and coparent.

8. How Does Child Support Work?

Child support is the money paid by one parent to the other parent to help support their child.  In Alberta, all parents have a legal responsibility to financially support their child, whether or not the parent spends any time with the child.  This is because child support is the right of the child—not the right of the parent receiving child support.  This means that parents cannot agreed to refuse child support.

According to the Federal Child Support Guidelines, there are two kinds of child support: Section 3 (monthly) and Section 3 (extraordinary) child support.

A – Section 3 Support – This is the “basic” amount of child support. Typically, it is paid monthly. It covers the child’s “fixed” expenses like food, clothing, shelter, and small incidental expenses like toothpaste or toys. The amount of monthly child support depends upon the payor parent’s income.  Revenue Canada provides an online child support calculator which makes it easy for parents to see how much they may be obligated to pay.  In cases where parents share parenting, the courts may set-off the parent’s child support obligations so that the overall payment is less.

B – Section 7 Support – This covers “special or extraordinary” expenses, which typically include:

• • Childcare expenses (daycare).
  • The child’s medical or dental insurance premiums.
  • Healthcare expenses, like braces, prescription drugs, or glasses.
  • Extra school expenses, for example, the additional costs of a special German-language program.
  • College or university tuition.
  • Extracurricular expenses, like hockey registration fees or ballet lessons.

The amount that each parent contributes to a special expenses is based on their proportional incomes.  For example, if one parent earns $60,000 annually and the other earns $40,000 annually, then together they would earn $100,000.  Therefore, the first parent would pay for 60% of the expenses, while the other would pay for 40% of the expenses.

A parent’s child support obligations do not always end when the child turns 18.  They may still be entitled to child support if they enroll in post-secondary education, or if they are unable to become independent for health or psychological reasons.

Child support orders and agreements are eligible to be automatically enforced by the Alberta Maintenance Enforcement Program, provided that a clause specifically allows for this.  In this case, MEP will handle all collections actions if the payor refuses to pay.

9. How Does Spousal Support Work in a Divorce?

Spousal support, sometimes called alimony, is the payment made by one spouse to the other spouse for their maintenance and support.  Support may be paid monthly, or as a one-time lump sum.  Unlike child support, a spouse is not automatically entitled to spousal support.  Instead, the spouse claiming spousal support must prove entitlement:

• Compensatory – To prove compensatory entitlement for spousal support, the spouse must show that they made career sacrifices for the benefit of their spouse’s career or the family. For example, if the wife quits her job in Edmonton so that her husband can take a new job in Fort McMurray, she may be entitled to support to compensate her for this career sacrifice.
• Need – To apply for “needs-based” support, the spouse must show that they are struggling financially, and that this struggle is because of the marriage’s breakdown. For example, if the husband is the breadwinner in the relationship, and the wife was a stay-at-home mother with no job experience, she may receive support until she can support herself.
• Contractual – Sometimes Prenuptial Agreements will include clauses stating that one spouse is entitled to spousal support if the marriage breaks down.  If this is the case, then entitlement will be a given.

Once entitlement is found, then spouses must consider the “quantum” (amount) and “duration” (length of time) of spousal support.  Typically, more spousal support will be awarded in long term marriages, if the spouses are seniors, and if there is a large income difference between the spouses.

Spousal or partner support orders and agreements are eligible to be automatically enforced by the Alberta Maintenance Enforcement Program, provided that a clause specifically allows for this.  In this case, MEP will handle all collections actions if the payor refuses to pay.

10. How Do Divorcing Couples Divide Property?

Lawyers usually file a ‘Statement of Claim for Division of Family Property’ alongside the claim for divorce.  The default rule in Alberta is that all family property is divided equally (split 50:50).  Under the Family Property Act, certain property may be exempt from this division, so long as it falls into one of the following categories:

• • Gifts received from third parties.
  • Inheritances.
  • Property owned before the marriage.
  • Certain awards or settlements for damages in tort law in favor of one spouse.
  • Insurance proceeds unrelated to property, unless they compensate the loss of both spouses.

The court will also consider any prior agreements between the spouses when dividing property—in particular Prenuptial Agreements.

Ask a Lawyer About Your Divorce

We hope you found this legal information helpful.  Feel free to call us at Morrison LLP at 587-758-1099 if you have any questions about your prenuptial or separation agreement—the first 30 minutes are free.

Although we are based in Edmonton, our family & divorce lawyers—and practicing mediators—are proud to serve much of northern Alberta, including the following communities:

• Edmonton & Area – Sherwood Park, Beaumont, Leduc, Fort Saskatchewan, St. Albert, Spruce Grove, Stony Plain.
• North – Athabasca, Morinville, Westlock, Gibbons, Barrhead, Redwater, Peace River, High Level, Fort McMurray.
• West – Drayton Valley, Edson, Hinton, Whitecourt, Devon.
• South – Camrose, Wetaskiwin, Millet, Calmar.
• East – Vegreville, St. Paul, Cold Lake, Bonnyville, Vermillion, Wainwright, Tofield.