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The topics in the Dial-A-Law series provide general information on a wide variety of legal issues in the Province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation.
This topic discusses separation and divorce. Generally, if you and your spouse no longer live together you are considered separated. Under certain circumstances, it is possible to live separate and apart even though both spouses live under the same roof. This is possible if the spouses sleep in separate bedrooms, there is little or no communication between the spouses; there are no sexual relations; the parties do not perform domestic services (i.e. cooking or cleaning) for each other in the absence of a contract for those services; meals are eaten separately; and the spouses do not share any social or recreational activities. Every situation is different, and this list is not exhaustive. There are no official Court proceedings needed to make the separation legal. Marriage, however, is a legal relationship and can only end by a Court Order granting a divorce. To get a divorce in Alberta, you must have lived in the province for at least 1 year. If you have not lived in Alberta for 1 year, consider starting your divorce action in the province where you do meet the qualifications to start the proceedings.
You will be granted a divorce by the Courts if one (1) of the following situations or grounds occur:
- You and your spouse have lived separate and apart for 1 year, or
- Your spouse has committed adultery. This means that your spouse had sexual intercourse with someone else, or
- Your spouse has been physically or mentally cruel to you, making it impossible to continue to live together.
If you intended to live separate and apart from your spouse for 1 year or longer, that is sufficient proof of your marriage breakdown. You and your spouse may attempt to get back together for up to 90 days without having to start counting the 1 year separation period again. However if you remain together for longer than 90 days you must start counting the 1 year separation from the date you separated again. For example, if you separated from your spouse at the end of January, and you reconciled for the months of March, April, May and June, you would start counting from separation date in June the 1 year requirement because you reconciled for more than 90 days. If you intend to divorce, you may file for divorce as soon as you separate from your spouse. However, the divorce will not be granted by the Court on this ground until you have actually lived apart and separate for 1 year.
You and your spouse must make decisions regarding all or any of the following:
- Who the children will live with or custody rights
- Visitation rights for the other parent or access rights.
- Financial support for the children,
- Financial support for a dependent spouse;
- The division of certain property of the marriage.
You and your spouse may agree to all matters and write down the terms of agreement in contract. You should consult with a lawyer to ensure the agreement is valid and properly executed. If your agreement addresses those matters that are under the jurisdiction of the Family Division of Provincial Court, you may apply for an Order by Consent to set out the terms of your agreement. If you and your spouse cannot agree, a Court will make the decision to resolve your family disputes. You should consult with a lawyer to protect your rights.
The divorce process is started by filing a Statement of Claim with the Clerk at the Court of Queen’s Bench. Serve the Statement of Claim for divorce on your spouse to notify him or her of the divorce action. The Statement of Claim for Divorce must be handed personally to your spouse by yourself or you may hire a process server. If you do not know where your spouse is living, you must do all that you can to locate your spouse.
If your spouse cannot be located for service, the Court may allow divorce papers to be served by advertising in the newspaper, through a relative, or by some other means. It depends upon your particular circumstances how long the divorce will take. An uncontested divorce may take between 3 to 5 months or longer. An uncontested divorce is where you and your spouse agree on all the important decisions to be made. A contested divorce may take several years. Contested divorces involve many disagreements over the important decisions for your children, property and financial support.
After a Court issues the Order for your divorce, you or your spouse have 30 days to appeal the decision. Even though your divorce is final, a Court can still change custody, access and child support arrangements but only if circumstances since the divorce have significantly changed.
Any disputes over the children are decided by the Courts in accordance with the divorce laws in Canada. The law says the best interests of the child must come first. The financial support and emotional support by each parent for their children must be in place before the Court will grant the divorce. Financial Support for your child is based upon the Canada Federal Guidelines which sets the basic amount of child support to be paid. The amount is based upon income of the parents and the number of children. The base amount may be changed after the Court considers the financial position of each spouse and their usual standard of living. Child support is paid until the children turns 16 years of age. However, if the child is still in school or unable to work, child support must continue to be paid.
The Court will also decide custody and access issues in the best interests of the child. The Court will consider which parent should have custody based on their ability to care for the children. Maximum contact with both parents is always considered in the best interests of a child unless there is good reason for supervised visits or no contact at all. Only in very rare circumstances will the Court deny visitation rights.
A Spousal Support Order may be paid by monthly payments or a lump sum of money.
In the best interest of the child, you are required to attend a Parenting after Separation seminar. Your particular circumstances will dictate how long and when. For example, if you are the defendant, you must attend within 2 months of being served with the Statement of Claim. The plaintiff must have attended the seminar before bringing any application to the Court for support for your children under the age of 16 years. Proof of attendance is required by Clerk of the Court before your divorce action can be set down for trial. Proof of attendance by the party setting down the action for trial must be filed with the Court. If you are not contesting the divorce or if your children are over the age of 16 years, you and your spouse do not have to attend the Parenting after Separation seminar. However, you must certify in writing that you and your spouse entered into an agreement settling all issues between you.
There are extraordinary cases where an exemption from taking the course might be granted. Each case will be dealt with on an individual basis. For example, if there is family violence, kidnapping or abduction, or one parent has without the consent of the other taken actual custody of the children there may be an exemption. However, the party granted the exemption may still be required to attend the course within 1 month of the granting of the exemption.