What is a contested divorce?
The Court of King’s Bench will generally not permit parties to get divorced without the resolution of four major issues. These are:
If these areas cannot be settled you will need to have the Court’s involvement in the resolution of the dispute.
The legal termination of a marriage is governed by a Canadian federal statute called the Divorce Act. The power over divorce matters is found in Section 91 of the 1867 British North American Act. The Divorce Act provides the statutory rules in matters of divorce, child custody, access, parenting, child support and spousal support between married people. Historically, spousal support has also been referred to as alimony.
How to resolve a contested Divorce in Alberta
In order to make a claim for relief under the Divorce Act a spouse must prepare and file a Statement of Claim in the Court of King’s Bench of Alberta. The spouse starting the court action is called the Plaintiff. The other spouse is called the Defendant. The Statement of Claim must allege certain basic facts such as: the names of the parties at birth and at the date of the marriage, their marital status at the time of marriage, their dates and places of birth, their current addresses, the dates that they commenced and ceased cohabitation, the date and place of their marriage, whether either party has been ordinarily resident in Alberta for at least one year before the Statement of Claim is filed, their grounds for divorce, which are; one-year separation, adultery by the Defendant, or physical and/or mental cruelty by the Defendant of such kind as to render the continued cohabitation of the spouses intolerable.
The Plaintiff must state that there is no possibility of reconciliation and that there has been no collusion; connivance or condonation if adultery or cruelty is alleged. The Plaintiff must provide the names and dates of birth of each child of the marriage including the child of one spouse where the other spouse stands in the place of a parent (In loco parentis). The Plaintiff must propose the parenting arrangement for each child and the financial arrangement for that child. The Plaintiff must state the date and details of any agreement made, the details of any other Court proceedings, and whether or not the Plaintiff is claiming or paying spousal support from/to the Defendant and the reasons, therefore. The Plaintiff must choose which remedies are being sought against the Defendant. The lawyer for the Plaintiff must certify that they have complied with section 9 of the Divorce Act.
It is strongly recommended that the advice of a lawyer be sought before the preparation of the Statement of Claim.
Once the Statement of Claim has been filed at the courthouse, the document must be personally served on the Defendant within one year of the date of filing. The personal service must be done by someone other than the Plaintiff. The Defendant will then have the opportunity to respond to the Claim by filing a Statement of Defence and/or a Counterclaim which must be done within 20 days of personal service.
Following the service of the Statement of Claim and the filing and service of a response by the Defendant, the parties will need to exchange financial documents. This is required so that each side has a clear understanding of the other’s finances, and abilities to divide property and pay child support and/or spousal support.
