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Divorce

SBL - Divorce

Each item listed below corresponds with the number on the attached charts, Divorce Process (Simple) and Divorce Process (Complex).

1. Initial Meeting.

At the initial meeting we will meet to review your particular circumstances, and the steps that can be taken to best resolve the outstanding issues between you and your spouse.

2. Information Gathering.

The information that is necessary for us to proceed on your behalf can be very substantial. Essentially, we will require the following information:

(a) the particulars of your marriage;

(b) information on your current employment and financial status including an up-to-date monthly expense budget (a sample form will be provided to you);

(c) supporting documentation with respect to your employment and financial status;

(d) particulars of all of the assets and liabilities of both you and your spouse;

(e) if custody and parenting time will be an issue, then we will require complete information about you and your spouse in regard to:

(i) parenting abilities;

(ii) past conduct;

(iii) morality;

(iv) mental and physical fitness;

(v) means and finances;

(vi) your wishes and future plans for your children and your family;

(vii) what you understand to be your spouse’s wishes and future plans for your children and his/her family;

(viii) the ability of each of you to facilitate contact between the children and the other party;

(ix) the ability of each of you to share and exchange information about the children related to:

(i) health; (ii) any preferences for either parent; (iii) the personality, character and emotional needs of the children; (iv) the physical, psychological, social and economic needs of the children; (v) the home environment proposed to be provided for the children by both you and your spouse; (vi) the bonding, love, affection and emotional ties between the children and all parties involved; (vii) the permanence and stability of the family units involved; (viii) the children’s schooling and any contact or difficulties or concerns in that regard; and (ix) any other factors that relate to the care of the children.


3. Court Documents.

To begin a Court proceeding, we will file one or more of the following documents:

(a) Statement of Claim for Divorce deals with custody and parenting time, child support and spousal support;

(b) Statement of Claim for Divorce and Division of Matrimonial Property deals with custody and parenting time, child support and spousal support, and under the Matrimonial Property Act (Alberta) asks for a division of your matrimonial property;

(c) Statement of Claim for judicial separation, custody and parenting time, child support, and spousal support; in cases where a divorce is not requested;

(d) Statement of Claim for a division of property in the case of a common law relationship where the Matrimonial Property Act (Alberta) does not apply, and it is necessary to bring a claim on some other basis such as unjust enrichment;

(e) Claim, Statement of Child Support, where we are seeking child support for children born out of wedlock; and

(f) Claim, Statement of Spousal/Partner Support, where seeking spousal support or adult interdependent partner support.

3(1) An Ex Parte Application is made to the Court without telling the other party in advance.

This is done in cases where giving notice would not be advisable in the current circumstances. Circumstances where an Ex Parte Application might be made include:

(a) an emergency application for a No Contact Order;

(b) an emergency application for an Exclusive Use and Possession Order;

(c) an emergency application for primary care and control of the children; and

(d) an application to prevent the dissipation of matrimonial property.

3(2) A Support and Property Agreement is a contract between spouses that sets out the settlement of all of the issues between the parties.

The items that can be agreed upon may include the following:

(a) custody and parenting time with the children including a parenting plan;

(b) child support and division between the parties of extraordinary section 7 expenses;

(c) financial support of either or both spouses;

(d) use and distribution of all property owned by either spouse;

(e) responsibility for the debts of either spouse; and

(f) any other matter in issue between the parties.

A Support and Property Agreement is binding on the parties as a contract, except with respect to issues relating to custody, parenting time and child support. In respect of those matters, the agreement will be binding unless a Court finds that with respect to custody, parenting time and child support, it is not in the best interest of the children, and that some other arrangement should be put in place.

A Support and Property Agreement is not the same as a Court Order. In order to enforce the provisions respecting custody, parenting time and child support, these terms must be reflected in a Court Order or Divorce Judgment. The Maintenance Enforcement Program will only enforce the payment of child support when the provisions are set out in a Court Order or Divorce Judgment.

The police will only enforce the provisions in respect of custody and parenting time if they are set out in an actual Order or Divorce Judgment.

If a spouse defaults in respect of his/her obligations as set out in a Support and Property Agreement you can obtain a Court Order requiring performance of such obligations.


4. Personal Service.

Your spouse must be served with the Court documents that commence a legal proceeding. Normally, this means that they will have to be served personally. This service must be done by someone other than you or one of your children.

If your spouse is served in Alberta, they will have 20 days to respond in the case of the service of a Statement of Claim. If your spouse is served outside Alberta, but in Canada, he/she will have

(1) one month to respond.

(2) If your spouse is served outside Canada, he/she will have two months to respond.


5. No Response from Spouse or a Demand of Notice.

Generally, if your spouse does not respond, within the allowed time, to a  Satement of Claim, we will Note him/her in Default and proceed with the matter without his/her further involvement.

Sometimes your spouse will respond to a Statement of Claim by filing a Demand of Notice which means he/she does not dispute the relief being claimed in the Statement of Claim but wants notice of any further steps taken in the legal proceedings.

5(1) Receive Statement of Defence or Counterclaim.

If your spouse wishes to dispute any of the relief claimed in your Statement of Claim, he/she must file a Statement of Defence and may also file a Counterclaim setting out what he/she disputes and what relief he/she is claiming against you.


6. Prepare and Sign Final Divorce Documents.

If there is no response from your spouse, or an agreement has been reached in respect of the divorce, custody, parenting time, child support, and spousal support, we will prepare the documents to complete the divorce, including an Affidavit to be sworn by you setting out the particulars of the marriage, the grounds for divorce, and the custody, parenting time and child/spousal support. If it is not necessary to have a trial, the Court will review the Affidavit evidence and determine whether to grant the divorce and any other corollary relief requested in the Statement of Claim for Divorce.


7. Final Divorce Documents at Court of Queen’s Bench.

Once the Affidavit has been sworn, we will forward the documents in support of the divorce to the Court. The documents are reviewed by a Divorce Clerk who will then send them to one of the Judges of our Court of Queen’s Bench to review.


8. Divorce Judgment.

Within 8-12 weeks after all documents have been submitted, they will be reviewed by a Judge who will determine whether the information in the documents is in order and if so will grant a Divorce Judgment. After a Divorce Judgment has been granted, your divorce is not yet final, and not effective and you are not free to remarry until a period of 31 days has passed. This allows either spouse to appeal the Divorce Judgment and provides a “cooling off” period in which you and your spouse can reconcile and call the divorce off, should you wish.


9. Certificate of Divorce.

If an appeal has not been filed, your divorce is final 31 days from the date the Divorce Judgment is granted. You will receive a Certificate of Divorce for your records that you can use to prove your divorce is final.


10. Interim Applications.

A Court Order is often necessary to deal with various issues before all matters can be concluded. Interim applications can be made to deal with a variety of issues including, but not limited to:

(a) custody;
(b) parenting time;
(c) child support;
(d) spousal support;
(e) court costs;
(f) no contact order;

10(1) Gathering Information and Preparing an Affidavit.

It will be necessary to prepare an affidavit setting out the facts supporting your position in respect of any applications you make, stating facts supporting your position in respect of any applications you make.

10(2) Serving Notice of Your Application.

The next step is to prepare an application to set a Court date for the application to be heard and serve it on the opposite side together with your affidavit. Except in emergency situations, we must give your spouse at least five (5) days advance notice before your application can be heard by the Court. The initial Court date is often adjourned to allow the other side to prepare his/her affidavit in response to your application.

10(3)  Reviewing Counter-Affidavit and Evidence.

Once a response affidavit has been filed and served on you, we will review it with you and determine whether to file an affidavit in response.

10(4) Questioning on Affidavits.

Questioning is essentially a question and answer period that takes place under oath. We are entitled to cross-examine your spouse on any matters relating to the application that is before the Court. Also, your spouse’s lawyer is entitled to cross-examine you on any matters that are before the Court.

10(5) Chambers Application.

An interim application can be made in Morning Chambers or Domestic Special Chambers.

Morning Chambers is the quickest and least expensive way to bring an issue before the Court, however, applications must be relatively simple, as the Court does not review your application or affidavit in advance. The Court does not give longer than approximately twenty (20) minutes for both sides to present their evidence and arguments in support of an application.

10(6) Domestic Special Chambers Application.

A Domestic Special Chambers Application is booked many weeks in advance. The Court has additional time to read your application and affidavit and the Court gives both sides sufficient time to present the facts and arguments in support of their side of the issue(s).

10(7) Preparing and Serving an Order.

After the Court has heard an application, the Court will render a Order. That Order has to be prepared by one of the lawyers involved in the application, approved by the lawyer on the opposite side, and then forwarded to the Court for signing by a Judge and is filed. The filed Order is then served on the other side.

Depending on the type of Order involved, the appeal period, should you wish to appeal, can be very short.


11. Questioning.

A questioning is similar to a Questioning on Affidavit as set out in number 10(4) above. The difference is that a Questioning has a broader scope in that it can deal with all of the issues outstanding between the parties as set out in the Statement of Claim for Divorce and any other related lawsuit. In preparation for a Questioning or Questioning on Affidavit, we will meet with you to review your evidence, and discuss with you the manner, type and scope of the questions that you can expect to be asked by your spouse’s lawyer.

A Court reporter will be present who will record and prepare a transcript of everything said at the Questioning.


12. Answer to Undertakings.

Sometimes at a Questioning, you will not be able to immediately answer a question or provide a particular document that is asked for. Your spouse’s lawyer may ask for an undertaking to provide that information or document at a later date.


13. Trial.

Very few divorce cases actually proceed to a trial. If your case does proceed to trial, you can expect that it will involve a lot of hard work from both you and your lawyer in order to prepare to present an effective case at trial. As a result, you can expect that preparing for trial and the trial itself will be time-consuming and expensive.


14. Judgment.

Unless a Judge reserves his/her decision, at the end of the trial, the Court will pronounce a Judgment. The document setting out the Judgment must be prepared by one of the lawyers involved in the case, approved by the other lawyer, signed by the Judge and filed with the Court. Subsequent to filing it with the Court, it must be served on the opposite party.


15. Possible Appeal.

If either you or your spouse wishes to appeal the Judgment of the Court, there is an appeal process, with a limitation period for filing your appeal.


Divorce Process: Simple

Divorce Process: Complex

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