"divorce process"

The reader is cautioned that with the passage of time and new legislative regulation there will be some information in this pamphlet that may not be totally correct or up to date. However, Student Legal Services of Edmonton takes no responsibility for an inaccuracy within this pamphlet and denies all liability for loss arising from an error contained in this pamphlet.

Additional copies of this and other pamphlets may be obtained by written request to:

Student Legal Services of Edmonton
University of Alberta
11011 - 88 Avenue
Edmonton, Alberta
T6G 0Z3

(A small fee may be charged)

Table of Contents

• VOCABULARY

• SHOULD I GET A DIVORCE?

• CAN I GET A DIVORCE?
  • Separation
  • Adultery
  • Physical or Mental Cruelty

• REASONS WHY A JUDGE MAY NOT LET YOU GET A DIVORCE
  • Collusion
  • Connivance
  • Condonation
  • Reasonable Arrangements for Children

• HOW CAN I GET A DIVORCE? - YOUR OPTIONS
  • Do-It-Yourself
  • Hiring a Lawyer

• CAN I GET A DIVORCE IN ALBERTA?

• STEPS IN A DIVORCE

• DOES IT MATTER WHERE I WAS MARRIED?

• WHAT IF I CANNOT FIND MY SPOUSE?

• HOW LONG WILL IT TAKE?

• THE PARENTING AFTER SEPARATION SEMINAR

• CHILDREN - CUSTODY

• CHILDREN - ACCESS
  • Reasonable
  • Conditional
  • Supervised
  • Specified

• MAINTENANCE

• MAINTENANCE ENFORCEMENT

• PROPERTY

• THE WAITING PERIOD

• REFERRAL NUMBERS AND ADDRESSES

VOCABULARY

Access - A spouse with "access" has the right to visit the children in a specified way at a specified time. Access and visitation mean the same thing.

Common Law Marriage - A common-law relationship exists when two people live together as husband and wife but are not legally married. A "common-law" marriage will never become a true marriage unless the couple actually gets married. The law generally considers people in these situations to be legal strangers, meaning that often, no special rights or obligations arise out of the arrangement.

Contested vs. Uncontested Divorce - An uncontested divorce means that both spouses agree on everything dealing with the divorce. This includes agreements on:

1. The fact that they both want a divorce.
2. How the property is to be divided.
3. Who will have custody of the children.
4. When and how the spouse who doesn't have custody of the children will be able to see them (this is referred to as "access" to the children).
5. How much money the spouse who doesn't have custody of the children will pay in maintenance.

If the spouses cannot reach an agreement on even one of these things the divorce is called a contested divorce. A contested divorce will take much longer to get because the spouses do not agree on everything to do with the divorce, which may require a court application or a trial.

Custody - The spouse who has an order from the court that he or she can keep the children has "custody" of the children.

Divorce - This ends the marriage between a couple.

Legal Separation - This means the spouses are not living together with the intention not to live together. A couple is "legally separated" simply by living apart in this way. There is no formal process or legal document needed for you to be considered legally separated.

Maintenance - This refers to payments made from one spouse to the other to support any children or that spouse.

Plaintiff vs. Defendant - The spouse who starts the divorce action is known as the Plaintiff, the other spouse is the Defendant.

Separation - This means the spouses are not living together, with at least one of them having the intention to be separated.

Spouse - This is the person you are married to.

Visitation - A spouse with "visitation" rights has the right to visit the children in a specified way at a specified time. Visitation and access mean the same thing.

SHOULD I GET A DIVORCE?

A divorce is a serious matter. A divorce ends a marriage and leaves each person free to re-marry. Divorce is something to be thought over carefully, perhaps with the help of a professional counsellor.

If you and your spouse decide to separate, there is no need to start a divorce right away. Some time apart from each other may give the two of you a chance to work out some of your problems. If you need money to help support yourself and/or your children during this time, you can apply to Family Court to get an order from a Judge to force your spouse to help you out. Family Maintenance can help you do this in Family Court (493-7638). Family Court will also handle disputes over who gets the children during the separation and when and how the other spouse may see the kids. Family Court Services can help you do this in Family Court (427-8343)

CAN I GET A DIVORCE?

The only ground for divorce is "marriage breakdown". A Judge will only decide that there is marriage breakdown if any one of the following has occurred:

1. Separation

The husband and wife have not lived together for at least one year.

This is the simplest way to get a divorce. You can apply for a divorce before the whole year is over, but the divorce cannot be finished until one full year has gone by since you lived with your spouse.

3. Physical Or Mental Cruelty

This cruelty need only happen once before a spouse may ask a Judge for a divorce. But the other spouse's cruelty must be so bad that it has become impossible to live with him or her anymore. For example, cruelty may be occurring if your spouse hits you, demeans you, or abuses you verbally or physically. Again, you need to prove that your spouse was physically or mentally cruel. This is easiest by swearing in an affidavit that your spouse was cruel to you.

If cruelty is going to be used as the reason you are getting a divorce, you do not have to wait a year before starting or completing the divorce proceedings.

REASONS WHY A JUDGE MAY NOT LET YOU GET A DIVORCE

There are several situations where a Judge may not let you get a divorce:

1. Collusion

This means that the spouses have invented false evidence or tried to trick the Judge in some way, in order to make the divorce possible or easier to get. If this happens, the Judge will not grant the divorce.

2. Connivance

This means one spouse agrees to or encourages the actions of the other spouse which would result in "marriage breakdown" (eg. encouraging your spouse to have an affair). PLEASE NOTE: This is at the Judge's discretion: that is, the Judge will decide whether or not to grant the divorce, based on all the facts.

3. Condonation

This is when one spouse forgives the other spouse's matrimonial offence. For example, if your spouse committed adultery or cruelty and you afterwards forgave him or her, you cannot use that adultery or cruelty as a reason to get divorced.

4. Reasonable Arrangements for Children

If you and your spouse have children, the Judge must be satisfied that reasonable arrangements have been made to take care of or support the children financially. What is reasonable will change depending on each couple's circumstances, but the Judge will decide if the arrangements that have been made are fair.

If the Judge decides that the arrangements reached are not reasonable, the Judge will not actually disallow the divorce (as is the case for collusion, connivance or condonation). The Judge will issue a stay of proceedings (this means the divorce is put on hold until more "reasonable" arrangements are made for the children).

HOW CAN I GET A DIVORCE? -
YOUR OPTIONS

1. Do-It-Yourself

Only the most straightforward divorces should be done without professional legal assistance. This generally means the divorce is "uncontested". An "uncontested divorce" means that the couple has reached agreements with everything to do with their divorce. In particular they have reached agreements on:

a) The fact that they both want a divorce.
b) How the property is to be divided.
c) Who will have custody of the children.
d) When and how the spouse who doesn't have custody of the children will be able to see them.
e) How much money the spouse who doesn't have custody of the children will pay in maintenance.

(PLEASE NOTE: It is also VERY important that you know exactly where your spouse is living so that you can give them your divorce papers when you have to.)

If you decide to do your own divorce, there are several booklets and kits available in bookstores.

For those who qualify, Student Legal Services of Edmonton offers a clinic that provides instruction on how to do your own divorce. For more information call the Family Law office at 492-8244.

A do-it-yourself divorce usually costs between $250 and $350 in Court and process server costs, plus the cost of the kit or forms you need.

2. Hiring a Lawyer

If a lawyer handles your divorce, the cost will likely be at least $1000.00. This cost estimate is for an uncontested divorce; a contested divorce will require a lawyer to do a great deal of negotiation and will cost more.

Remember, the services and advice of a lawyer might save you thousands of dollars in the long run. Most lawyers base their fees on the amount of time they spend on your case. You should talk to your lawyer about his or her fees during your first interview so you know what to expect. You can help your lawyer and save yourself money by preparing a written list of questions that you want answered before your appointment.

As part of your divorce case, you may ask the Judge to order that your spouse pay you for some of the costs of the divorce. Your lawyer will discuss with you whether you should ask for this type of order in your particular circumstances.

You may wish to call the Lawyer Referral Service at 1-800-661-1095, and get the names If three divorce lawyers in your area who you can talk to, for free, for the first half hour.

If you need a divorce and cannot afford a lawyer, contact Legal Aid at 427-7575. However to apply for Legal Aid you need go down to the Legal Aid office in person and pay a $10.00 application fee. Their address is #300, 10320-102 Avenue, Edmonton Alberta, T5J 4A1. You may be granted a lawyer if you are financially eligible, depending on the urgency of your situation.

CAN I GET A DIVORCE IN ALBERTA?

You must meet the residency requirements if you wish to start a divorce in Alberta. Either you or your spouse must have been "ordinarily resident" in Alberta for one year immediately before the divorce action. To be "ordinarily resident" means that you are employed or are looking for a job, have set up a home, and have transferred any bank accounts you have to Alberta. If you do not meet this requirement for Alberta, you may start your divorce in any province where you meet these requirements.

If you do not meet these requirements anywhere, you must wait until you been "ordinarily resident" in Alberta for one year before a divorce action can be started.

STEPS IN A DIVORCE

A divorce is started with a document called a "Statement of Claim for Divorce". In the divorce documents you will be the Plaintiff and your spouse will be the Defendant. Once the Statement of Claim is completed, signed and taken to the Courthouse to be put in a file which is opened by the Clerk of the Court, it must be "served" on the Defendant (your spouse). This means it must be delivered personally by someone to the other spouse. After service of the Statement of Claim, the Defendant has 15 days (40 days if out of province) to dispute the Statement of Claim. If he or she does not file a dispute (Statement of Defence), this means the divorce is uncontested. The Plaintiff may then file an Affidavit of Service, Precise to Note in Default, Request for Divorce, Affidavit in Support of Application for Divorce and a Divorce Judgment with the Clerk of the Court.

The Clerk will then give the divorce file to a Judge to look at. If the Judge does not accept some of the evidence given or is unclear on anything, he or she may request that the Plaintiff (and the Defendant) go to court to present more evidence or answer any questions.

Once the Judge is satisfied with the documents and evidence presented, he or she will sign the Divorce Judgment, which will then be returned to the Clerk, who will mail one copy each to the Plaintiff and the Defendant at the addresses given in the Request for Divorce.

Thirty-one days after the Divorce Judgment has been signed, the Plaintiff can make a request for a Certificate of Divorce, which is the final document of the divorce action.

Other steps may be needed if the marriage did not take place in Canada, if the Defendant cannot be located, or if the Plaintiff is asking for maintenance or costs.

There may be many more steps in a contested divorce.

DOES IT MATTER
WHERE I WAS MARRIED?

You may get divorced in Alberta no matter where you were married. If you were married outside of Canada, the Court will need some proof that the marriage was valid according to the law of that place; for example, a marriage certificate issued by the government of that place.

WHAT IF I CANNOT FIND MY SPOUSE?

If you or your lawyer have made all reasonable efforts to locate your spouse without success, a Judge will usually give permission to serve the Statement of Claim for Divorce by advertising in the newspaper, or service on a relative, or some other means. However, you must obtain the Judge's permission first.

HOW LONG WILL IT TAKE?

The length of time from start to finish of a divorce action depends upon how quickly you (or your lawyer) finish the paperwork, how easy it is to locate and serve the documents on your spouse, and how many complications there are in the case. An uncontested divorce will generally take between 3-5 months. A contested divorce could take as long as a few years.

THE PARENTING AFTER SEPARATION SEMINAR

If you and your spouse are unable to agree on issues of custody, access or child maintenance and a Parenting After Separation Seminar is offered in the city where you live, you will be required to attend the Seminar before making any application to the court. In Edmonton, you can call 413 - 9805 to register for the seminar, which will hopefully give you and your spouse a new perspective on the divorce process and the impact it may have upon your child.

CHILDREN - CUSTODY

As well as giving you a divorce, a Judge has the power to order which spouse will have custody of the children. Custody will usually be given to the person asking for it if there is no dispute. But, if both spouses want custody of the children, a Judge will make a custody order according to what he or she feels is "in the best interest of the child". It is also possible, if both spouses agree, that a Judge may grant "joint" custody, which gives both spouses equal custody of the children.

CHILDREN - ACCESS

1. Reasonable

- where the parents decide between themselves when access should be granted.

2. Conditional

- where certain conditions must exist before access is allowed.

3. Supervised

- the spouse wanting access may only visit in the child's home or when he or she is with another adult.

4. Specified

- the court will outline the exact times when the spouse wanting access may visit.

In very rare circumstances a Judge may make a "no access" order. This is done when a Judge feels that allowing the spouse who wants access to see the child may somehow harm the child.

It is also possible for a Judge to grant access and even custody to a third party, if a Judge feels it would be in the "best interest" of the child.

MAINTENANCE

In your statement of claim for divorce you can ask for maintenance for both yourself and the children. Maintenance payments and "support" payments mean the same thing. In deciding whether or not to grant child maintenance or spousal maintenance, a Judge will look at each spouse's financial circumstances.

It is possible that you may only receive spousal maintenance for yourself for a limited time (for example, three years). This is done to encourage ex-spouses to become self-supporting. In long term marriages where a spouse is unable to support himself or herself as a result of their contribution to the marriage, a Judge may order maintenance for an unspecified time.

The Court recognizes that children have a right to maintenance as well. These payments are normally made from the non-custodial to the custodial parent and are usually made monthly. As of May 1, 1997, the Divorce Act has been amended to include new Child Support Guidelines which include rules for how to calculate the appropriate amount of child maintenance, as well as a table of awards for each province and territory. These Guidelines require both parents to provide complete and accurate information about their income, as the Guidelines are based upon the parties' income, and take into account the average cost of raising a child. If you were divorced or have an interim order dated prior to May 1, 1997, the new Guidelines do not automatically apply to your situation. You do however have the right to return to court and request a new child support order. You may wish to consult a lawyer to see whether a new order is beneficial in your particular circumstances, particularly as the new Guideline amounts are no longer tax-deductible for the payor, nor taxable to the recipient.

MAINTENANCE ENFORCEMENT

All Maintenance Orders made after January 1st, 1987, are enforced under the Maintenance Enforcement Program (MEP) unless the spouse collecting maintenance has chosen to opt out.

Under the MEP, the spouse who is to pay maintenance sends a cheque to the MEP. After this cheque clears the bank a government cheque is then sent to the individual entitled to the maintenance support. If the cheque does not clear the bank or it is not received at all, the MEP has the power to collect this money from the person through other ways, such as garnishment of wages and seizure of property.

If you have any questions about the MEP, call 422-5554 or the toll-free information line at 1-800-642-3803. There are no registration costs for the MEP and it is available to all residents of Alberta.

PROPERTY

If the spouses cannot agree on how to split up the "matrimonial property" (house, furniture, and other items purchased during the marriage), you or your lawyer should file a Statement of Claim for Divorce and Matrimonial Property Division, not just a Statement of Claim for Divorce.

If you cannot agree on a division of property it would be in your best interest to have a lawyer help you settle this problem.

THE WAITING PERIOD

Several things might happen during the thirty-one day waiting period before a spouse can apply for the Certificate of Divorce.

1. The spouses might reconcile. If so they should apply at court to set aside the Divorce Judgment. They would then once again be considered married to each other.

2. One spouse might appeal the Divorce Judgment. If so, no Certificate of Divorce could be issued until the appeal was over.
NOTE: No appeal can be started after the Certificate of Divorce has been issued.

3. An application might be made by anyone to set aside the Divorce Judgment because it was obtained as a result of fraud or collusion. This application would have to be finished before a Certificate of Divorce could be issued.

Normally, none of these occur, and the Certificate of Divorce is granted 31 days after the Divorce Judgment, on application to the Clerk of the Court.

REFERRAL NUMBERS & ADDRESSES

Family Court Services
Room 401, Royal LePage Building
10130 - 103 Street
Edmonton, Alberta T5J 3N9
Telephone: 427-8343

Family Maintenance - 493-7638

Family Violence Program - 422-5916

Lawyer Referral Service - 1-800-661-1095

Legal Aid Society of Alberta - 427-7575
300 - 10320 102 Avenue

Marriage Counselling

Alberta Family and Social Services - 427-2734
Catholic Social Services - 432-1137 or 424-3545
Jewish Family Services - 424-6346
Mental Health Services - 427-4444
Pastoral Institution of Edmonton - 482-2424