Divorce

Divorce in Alberta

Separated and looking for a divorce?  You are not alone.  Almost 40% of marriages end in divorce in Canada—and the divorce rate is increasing.  Yet, it is tough to find reliable legal information about the divorce process.

This article answers some basic questions about separation and divorce in Alberta.  Keep in mind that this is legal information—not legal advice.  Every divorce is unique, and you should always speak to a lawyer before filing for divorce.

Call Morrison LLP at 587-758-1099 to speak with a lawyer about your separation and divorce.  The first 30-minute phone consult is free.

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

1 – 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.

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

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. 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.

How Long Does a Divorce Take in Alberta?

It 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. 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 granted.

If the spouses are on friendly terms, they may be able to resolve their issues in one or two mediation sessions.  If the legal issues are too complicated, or the spouses are high conflict, then the divorce may need litigation.  In this case, it may take 2 – 3 years before a trial can be scheduled.

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 over a year to resolve from the date of separation.

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, then divorce mediation may be an option, which will save the spouses 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!

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.

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.

How To Prepare for a Divorce

Every divorce is different, and preparations will depend on the type of relationship that you have with your spouse.  That said, here are some general tips to help keep you safe and organized:

1. Speak to a lawyer – Many people turn to family and friends who have gone through a divorce for legal advice. This is a bad idea. Only a lawyer is qualified to give you legal advice.  Lawyers understand that law and can predict how it may apply to your specific situation.

If you cannot afford a lawyer, here are some alternatives:

• • Legal Aid Alberta may be able to help you with your divorce if you have limited means.
  • The Edmonton Community Legal Centre may be able to help you speak with a lawyer about your divorce matter for free. In fact, most of Morrison LLP’s divorce lawyers volunteer with the ECLC to do just that.
  • The Law Society’s Lawyer Referral Service lets you speak with a lawyer for free for up to 30 minutes. The lawyers at Morrison LLP are a part of this service, so call us at 587-758-1099 to speak with a divorce lawyer for up to 30 minutes for free.
  • If you and your spouse are on good terms, and would like to try divorce mediation, then you can search for mediators who are registered with the Alberta Family Mediation Society.  As Morrison LLP’s lawyers are Practicing Mediators with the AFMS, you can also call us to schedule a divorce mediation.

2. Prepare Yourself Financially –Divorce is often expensive.  This is because spouses typically share expenses during the marriages, such as housing and utility costs.  After separation, each spouse will be responsible for their own living expenses.  This raises household expenses—especially if each parent needs a residence large enough to accommodate the children.  On top of this, each spouse will be responsible for their legal fees.

Before separating, you should ensure that you have access to money—ideally you will have set aside savings or investments, you will have monthly income, and access to a credit facility (such as a credit card or a line of credit).  If you do not have money, then you should reach out to friends and family to see if they will be able to help you get back on your feet.  This will put you in the best position possible to deal with the potential consequences of a separation.

3. Arrange for Emergency Housing – No one can guarantee how their spouse will deal with the trauma of a separation.  Accordingly, it makes sense to hope for the best and prepare for the worst. You should have a safe exit strategy in case you need to leave the home: know where you will stay and how long you can stay there.  Do you have any family or friends with whom you (and your children) can stay?

4. Change Your Passwords – Spouses often share access to their social media accounts or service providers. It is usually a good idea to change your passwords so that an angry-ex cannot share your private information on Facebook, delete your photographs, or—God forbid—cancel your Netflix (or your heat and water).  You also do not want your spouse draining your online bank accounts or selling your cryptocurrency.

5. Gather Important Documents – It can be difficult to obtain copies of documents after you separate—especially if your spouse was in control of the finances, or you stored your documents in your house.  Important documents include your Marriage Certificate, Certificate of Title for your house, or your tax returns.

6. Talk to Your Spouse – If you are on speaking terms: speak! Divorces work best when spouses can cooperate to work out their issues. You will save time, money, and emotional energy this way.  At the very least, it is a good idea to talk to your spouse or family members about your post-separation plans.

If you have children, it is important that you consider what their living arrangements will look like before you separate.  The Court will only consider their best interests when making a decision, so it is better if you know what those are before you separate.

7. Revise your Will – It is good practice to revise your will so that your Estate is disposed of how you would like. Without a will, your ex-spouse could inadvertently wind-up with all of your property.  You should make sure to update your beneficiaries for any RRSP, pension, or insurance policies, because the administrator of the same may not follow the terms of your will, depending upon where they are headquartered.

How Do I Get a Divorce in Alberta?

Step 1 – Is Divorce the Best Choice?

Most couples have marital troubles at one point.  In fact, a recent study suggests that over half of all married individuals (aged 25 – 50) have thought about filing for divorce.  Interestingly, the study also found that the majority of these individuals were glad they did not do it.

Additionally, Section 7.7 of the Divorce Act specifically states that lawyers must advise their clients of the possibility of reconciliation before filing for divorce.  As such, 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 be your last option.  But if this is the case, the steps in the divorce process are relatively straightforward.

Step 2 – Review the Grounds for Divorce

You can only file for divorce in Alberta if you, or your spouse, has lived in Alberta for at least 1 year.

If you meet this residency requirement, then you must also have grounds for divorce.  There are three grounds for divorce: adultery, cruelty, and separation.

1. Adultery – Adultery is when a married person has sex with someone other than their spouse. 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 living together has become impossible. Like adultery, cruelty must be proven to the court before a divorce may be granted.
3. Separation – 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.

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.

Step 3 – 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 and must be filed with the Alberta Court of Queen’s Bench.  The Court charges a filing fee of $250.00.

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.

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

Step 4 – Swap Financial Information 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.

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 bank statements.

Failure to give 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 5 – Resolve the Dispute

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 a settlement, 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 6 – 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.

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.

Divorce in Alberta – Key Legal Information

Different divorces will have different legal issues.  Why?  Everyone’s situation is different—some people have children, some do not; others have big McMansions, others have nothing but credit card debt.  That said, most divorces revolve around four main legal issues.

1. Parenting (Child Custody)

There are two aspects to any parenting order: decision making and parenting time.

1. 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.

2. 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.

Best Interests of the Children

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, for example:

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

This is a broad list, and ultimately the court will consider any factor that it believes is relevant to the child’s best interests.

For more detailed information, see our article on parenting and decision making.

2. Child Support

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.

1 – Base (Section 3) Child 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.

2 – Extraordinary (Section 7) Child 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.

For more detailed information, please see our article on child support in Alberta.

3. Spousal Support (Alimony)

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:

1. 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.
2. Non-Compensatory – 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.
3. 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.

4. Division of Family 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.

Reach Out to an Alberta Family & Divorce Lawyer Today

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 divorce—the first 30 minutes are free.

We have offices in Edmonton and Red Deer, however, 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.