The Defendant in a Divorce Proceeding

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This topic will discuss the defendant in a divorce proceeding. If you have been served with a Statement of Claim for Divorce, your spouse is notifying you that she or he has started a divorce action against you. You are the Defendant in this action. Your spouse who started the divorce action is called the Plaintiff.

You may either agree with the claims and the relief asked for in the Statement of Claim for Divorce or not. If you agree with the claims and relief asked for, then the divorce action is considered uncontested. You may want to file a Demand of Notice to ensure you are notified of the progress of the action. This document says that you are not objecting to anything in the claim or contesting the divorce, but simply asking to be informed of what is happening. Or, you may do nothing. The divorce action will continue without your involvement.

If you wish to contest the divorce, you must file a Statement of Defence with the Court to deny or object to some or all of the claims made by your spouse. You should consult with a lawyer if you are planning to defend against the action. An Examination for Discovery may be required which is complex and can take months. If there is no settlement, then there will be a divorce trial held.

Contact your spouse’s lawyer and tell them what you intend to do. The name of the Plaintiff’s lawyer can be found on the back of the Statement of Claim. Also, on the back page is a Notice to the Defendant giving the time period in which you have to respond to the action. If you live in the province of Alberta, you will have 15 days to reply to the claim. If you live out of the province, but in Canada, you will have 40 days to reply. If you live outside the country, the time period to reply is set by the Court. If you were served outside Canada, the Court Order will set out the instructions for you to follow. Do not ignore these documents or the time periods by which you must respond. If you wish to contest the claims made in the Statement of Claim for Divorce, you may lose the opportunity if you miss the date.

Where you are served with a Notice to Disclose, you have 30 days to provide certain information requested in the Notice. Often the request is for information about your financial situation. On the back of the Notice, you will find the address to send the information requested. The consequences are also stated on the back page of the document should you fail to provide the requested information. For example, you may have to attend Court at a certain time, produce certain documents, and pay financial support, Court costs and so on. You should be advised on how to present your evidence for your Court date.

The Statement of Claim for Divorce sets out the claim and relief asked for by your spouse. The Statement of Claim may contain any or all of the following:

• Grounds for the divorce: Divorce is granted where there is a breakdown of your marriage. You can prove the breakdown of your marriage by 1 of 3 situations; adultery, mental or physical cruelty, or 1 year of separation. One or more of these situations must be claimed in the Statement of Claim for Divorce. If you decide to challenge the grounds of the marriage breakdown, then you must prove them not to be true.
• Custody, access and child support are 3 critically important areas. Parents are encouraged to agree on custody and access if at all possible, bearing in mind that even though the marriage may be over, the children are entitled to maximum contact with each parent. In most cases when one parent has custody, the other is generally entitled to reasonable rights of access to the children. Sometimes, however, even access can be a cause for dispute between the parents. In a case where parents cannot or will not agree on custody and access, a Court will ultimately decide the question based on the best interests of the children. In such a situation the wishes of the parents become largely irrelevant. Depending on the circumstances and their ages, the wishes of the children may be considered.

The amount of minimum child support to be paid is set by the Federal Child Support Guidelines. Some special or extra-ordinary expenses can be agreed to be paid by the parents or be ordered by a Court. The amount of the special expenses is generally shared proportionately by the parents based upon their income, and is paid in addition to the basic child support. The parent with whom the child lives is not required to claim the child support on their income tax return after May 1, 1997 if the Court made a Child Support Order. Correspondingly, the parent who makes the child support payments under the Court Order cannot claim the child support payments as a deduction. You may make a change to any agreement or Court Order regarding your children’s custody, access and support payments if there is a change in circumstances of either parent or the children.

If you are contesting the divorce, you must attend a Parenting after Separation seminar. 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. Proof of attendance is required by Clerk of the Court before your divorce action can be set down for trial. If you are not contesting the divorce or if your children are over the age of 16 years, you are not required to attend the Parenting after Separation seminar. You must certify in writing that you and your spouse entered into an agreement settling all issues between you.

There are some extraordinary cases where you may be exempted from taking the parenting course. Each case will be dealt with on an individual basis. For example, if there is family violence, kidnapping or abduction, or where 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 at some time.

• Spousal support may also be claimed. The Support Order awarded is decided on a case-by-case basis. The Court will consider the means and needs of each spouse and the role that each spouse played during the marriage. Spousal support received by a spouse must be declared as income on their tax return, and the spouse who may deduct the payments made on his or her annual tax return.

The plaintiff may also ask the Court to award costs of the action to them. If this claim is successful, the Defendant will have to pay part of the Plaintiff’s Court costs.