A Complete Guide to the Divorce Process in Alberta

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A divorce in Alberta proceeds through the Court of King's Bench. Filing the claim, obtaining judgment, the divorce taking effect and obtaining a certificate are distinct steps with different requirements.

Before You File, and What the Court Needs to Grant It

Some requirements apply when a divorce claim is commenced; others must be satisfied before the court grants it.

To file

Residence. Either spouse must have been habitually resident in Alberta for at least one year immediately preceding the commencement of the proceeding. The court's packages put the same requirement in their own words: you and your spouse, or one of you, must have lived in Alberta for one full year before the Statement of Claim for Divorce is filed.

Living separate and apart at that moment. Where the claim relies on separation, the spouses must have been living separate and apart when the proceeding was commenced. This is not the same as the one-year period, and a completed year is not a precondition of filing.

The practical conditions. For the desk route the packages add three of them. The parties must be legally married rather than in a common-law relationship. There must be a proper marriage certificate. And the other spouse's whereabouts must be known, because they have to be served.

For the court to grant it

The ground. A court of competent jurisdiction may, on application by either or both spouses, grant a divorce on the ground that the marriage has broken down. Breakdown is established in one of two ways.

The separation route. The spouses must have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding, and must have been living separate and apart at the commencement of the proceeding. The one year is measured to the determination, not to the filing.

The conduct routes. Breakdown is also established where the spouse against whom the proceeding is brought has committed adultery, or has treated the other spouse with physical or mental cruelty of such a kind as to render continued cohabitation intolerable. Neither of these carries a one-year period, and both are directed at the conduct of the spouse the proceeding is brought against.

Child support, where there are dependent children. The judge must be satisfied that the amount of child support is reasonable before the divorce can be granted, which in most cases means the Federal Child Support Guidelines. The package notes that there are very limited cases in which a different amount is permissible.

Reconciliation does not automatically restart the clock. Resumed cohabitation during periods totalling no more than 90 days, with reconciliation as its primary purpose, does not interrupt the separation period.

The Steps, in Order

The court publishes instruction packages that set out the documents and the order they are filed in. What follows is the uncontested route, where one spouse files and the other is served.

1
File the Statement of Claim for Divorce.
The spouse who files is the plaintiff; the other spouse is the defendant.
2
Serve the claim on the defendant.
Service is personal, and it is carried out by a third party rather than by the plaintiff.
3
File the Affidavit of Service.
This is what proves to the court that service actually happened.
4
File a Noting in Default.
This step applies where the defendant does not respond within the time allowed.
5
Prepare the Request for Divorce.
This asks the court to deal with the claim on the documents.
6
Prepare the Affidavit of Applicant.
It sets out the facts the court needs in order to be satisfied about the claim.
7
Prepare the Divorce Judgment.
The package requires it to be typed rather than handwritten.
8
File them together with the package checklist.
The checklist is what the court uses to confirm the set is complete.
9
Request the Certificate of Divorce once the divorce has taken effect.
The usual effective date is the thirty-first day after judgment, subject to the statutory exceptions, including an appeal.

The joint route differs from step one onward. The spouses apply together as Spouse 1 and Spouse 2 rather than as plaintiff and defendant, no service on the other party is required because both are applicants, and one or both of them may attend to file the Joint Statement of Claim for Divorce.

Where there are dependent children, the package requires more. A child support calculation sheet is filed, a Parenting After Separation certificate or an exemption is required, and the Affidavit of Applicant has additional parts dealing with the children, the parenting arrangements and the financial arrangements.

Filing, Judgment, Effective Date, Certificate: Four Different Things

Filing, judgment, the effective date and the certificate are separate events.

Filing

This is when the claim is commenced. It is the moment the residence requirement and, on the separation route, the requirement to be living separate and apart are measured against.

Judgment

This is when the court grants the divorce. It is not the moment the divorce takes effect, and the packages are explicit that the spouses are not free to remarry until the judgment takes effect.

The effective date

The usual rule is that a divorce takes effect on the thirty-first day after the day on which the judgment granting it is rendered, subject to the statutory exceptions. The court may order it earlier where circumstances warrant and both spouses agree not to appeal; where an appeal is pending, it takes effect only once the appeal period has expired or the appeal is disposed of. On taking effect, the divorce has legal effect throughout Canada.

The Certificate of Divorce

It may be requested 31 days after the judgment, and the packages describe it as what a person needs in order to remarry.

For current processing times, ask the Court of King's Bench of Alberta. Which court hears a family matter, and what attending it involves, is a separate question.

What It Costs

What a divorce costs has two parts that behave differently: the court's own charge, which is published, and the cost of whatever legal help the matter needs, which depends on the matter. Both are set out separately.

When to Talk to a Lawyer

A Calgary family lawyer advises on which route a matter is eligible for, prepares and checks the documents the package requires, and deals with the parts of the process that decide whether a filed claim goes through.

Circumstances in which to get advice:

1
A spouse whose whereabouts are not known, where the desk route depends on being able to serve them.
2
Dependent children, where the court has to be satisfied about the amount of child support before it can grant the divorce.
3
A marriage certificate that cannot be produced, or that is not in a form the package accepts.
4
A separation date that the spouses do not agree on.
5
A period of resumed cohabitation, where whether the separation period was interrupted becomes a question.

Divorce in Alberta more generally, and what a lawyer does on a divorce file, is set out on the divorce page. The settled routes, and what has to be true for each of them, are set out on their own page.

Talk to a Calgary Family Lawyer

Contact THEBIL Law to discuss a divorce and the questions you want to address, including which route applies to your situation and what the court will need from you.

Call 403-457-3128.

Book a Consultation›Talk to a Calgary family lawyer