Divorcing in Alberta - FairPlay Mediation

Divorce is a major life event that, for many, can seem overwhelming. It adds emotional, financial, and legal complexity to an already challenging situation.

If you're considering a divorce, understanding the process can help. In Alberta, the legal divorce process is managed under the federal Divorce Act, which gives the reasons ("grounds") for divorce and describes the process to follow to become divorced.

Some aspects of divorce are guided by specific provincial laws (for example, in Alberta, laws guide how property is divided and who is expected to pay child support). Steps in the divorce process are predictable — documents are prepared, financial records are exchanged, discussions are held, agreements are made, and your signed documents are sent to court. Being prepared can reduce the chance of making big errors. Understanding how to respond to the errors that others make can reduce their impact.

There are alternatives to traditional litigation, however. Mediators, such as those at FairPlay Mediation, often work to resolve disputes that involve children, dividing family property, arranging finances, or developing ongoing care-giving plans in ways that are non-adversarial. Their goal is to allow the people involved to avoid stress, additional heartache, and high costs. This approach makes sense in many ways — with the possible exception of lawyers who offer mediation services at inflated rates.

Understanding Grounds for Divorce

In Alberta, there are three primary grounds for divorce under the Divorce Act:

Separation

The most common ground for divorce, this calls for the spouses to live "separate and apart" for at least one year. A reasonable period is set to allow the parties to reflect. This ensures that taking such an extreme step (breaking up a marriage) does not occur impulsively. The period also allows them to legally make arrangements for their upcoming futures—child(ren)’s custody and parenting, division of their property, and interim and long-term spousal support and child support.

Adultery

If one of the spouses engages in sexual intercourse outside the marriage, this is grounds for divorce. In this case, you would not have to wait for a year to pass, and the divorce action could be commenced straight away. Yes, adultery is a violation of the marital contract, so it is a legal condition on which to base to the request for a divorce—find your evidence, and off to court you go.

Cruelty

Defined as "any sort of behavior that could render intolerable your continued cohabitation" could be grounds for divorce. A wife-beater? Out. Is he/she loud, obnoxious, and crude all of the time, to the point that your friends have stopped coming over? It could be articulated. At least you slipped away from the relational violence.

Steps to Filing for Divorce in Alberta

Determining eligibility is often the first step in getting divorced in Alberta. Generally, either you or your spouse is required to have been living in Alberta for at least one year before you have the ability to file for divorce, thereby giving the Alberta courts jurisdiction over your divorce.

Here is a general guide to help you understand the divorce process.

1. If you're eligible to file for divorce (see our eligibility guide for more details), find your original marriage certificate and all of the documents you used to calculate your net assets, net debts, Net Family Property & Equalization Payment. Tip: Print at least three copies of everything – lawyer neatness counts – you don’t want your paperwork to get lost, misplaced, or stuck at the bottom of a pile.

2. Print three copies of our Central Divorce Registry (CDR) Form

3. File your divorce at the Court of King’s Bench of Alberta.

The spouse that starts the proceeding is now the Applicant (also referred to as the Petitioner in some provinces) and the other spouse is now the Respondent (also referred to as the Defendant in some provinces).

4. A Statement of Claim for Divorce is prepared. (You can get a template from the Court of King's Bench in Alberta.)

5. The Statement of Claim for Divorce is filed and then copies are served on your spouse. This process is known as service.

6. After your spouse (The Respondent) has been served, they will have a specific time period to respond to your claim. Depending on the province you live in, this ranges from 14 to 30 days.

At this stage, there are multiple scenarios that can happen, which we will go into more depth below.

This is where Alternative Dispute Resolution, or Mediation, can come into play. The good news is that you can control your own divorce costs. The bad news is that if you have an ex-partner that is angry, has unrealistic expectations and is unwilling to work with you, mediation may not be possible, and divorce costs could range into the tens of thousands of dollars for both of you.

Key Issues to Address

Child custody and support, spousal support, and the division of property are all important aspects of family law.

Child custody and support cases focus on matters in the best interests of the child. Will it be joint custody or sole custody? What will be the arrangements? A judge will look at many factors, such as the parents' ability to get along and what the child needs. Child support calculations may be based on the income of both parents and the percentage of time the child spends with each parent, ensuring that the child has what he or she needs for education, some types of health care, and general upkeep (based on the income of the parents).

Spousal support's goal is to provide a cushion and some compensation for some time to a spouse with less income than the ex, to live for however long he or she will need it. The period of the marriage, the standard of living while married, and the incomes (now and what each party likely will make in the future) are also key ingredients in deciding spousal support.

The division of property equals the fair distribution of matrimonial goods and the debts of divorcing spouses. If you as one spouse get the bulk of the assets of the marriage, you'll probably have to pay the other an equalization payment. Buying (real estate, stocks, bonds, etc.) and investing in an asset may entitle the other spouse to a portion of that asset down the road.

Alternatives to Court

Mediation offers a crucial alternative to the traditional court system. It uses a neutral facilitator to guide the disputing parties through negotiations. Instead of deciding who wins, the mediator coaches both sides to communicate more transparently, articulate their interests, and develop creative win-win strategies. Many people find the mediation approach to be less adversarial and, thus, less stressful. It is also more emotionally and financially economical. Finally, it draws on our human tendencies to value community, collaboration, and relationship. If you keep the focus on underlying interests, it can be easier to face Uncle Bob at Christmas or the neighbor across the alley without pangs of unnecessary stress.

Legal Assistance

Having a family lawyer for advice and to draft documents protects you from the unexpected that often (unfortunately) defines family law. Whether it's a divorce, child custody, or something else, a family lawyer can guide you through the law to make sure you're protected and grounded in legislation. They can also draft the agreement in full lawyer speak to make sure it's followed to a "T" once it's signed. Sometimes, depending on the situation, there's some rule you weren't aware of that could majorly impact your case.

For those that have lower income and, and meet certain financial criteria, Legal Aid Alberta is a service that helps you by providing access to justice. They have a range of programs as part of their benefits to help you—from advice to putting you in front of a lawyer that will help represent your case if you qualify.

Emotional and Practical Considerations

Getting through life's challenges often requires a mix of the emotional and the practical.

On the emotional side, get support. This is a perfect time to engage with a therapist or counselor, just to have the opportunity to talk and work through what the next chapter might look like. A professional is most adept at helping with the emotional side that might include stress, anxiety, sadness, and depression.

On the practical side, there are things that just need to get done. Other administrative tasks, such as updating your will, beneficiaries or benefit plan coverage will need to be addressed at some point.

Managing your overall health, while addressing the more practical elements of a separation, may feel overwhelming at first. Get the help you need early and just take it a step at a time.

Getting divorced in Alberta requires you to navigate many structured legal guidelines. The steps, though not perfect for every situation, are designed to be as fair as possible.

Whichever path your divorce journey takes, the most important piece of advice is be amicable and kind wherever possible, and have a plan in place. Work to minimize conflict and be open to having difficult, but honest, future-focused discussions with your soon to be ex-spouse. These discussions may be uncomfortable as you have to tackle difficult topics like money, where you will be living, and co-parenting responsibilities, but you will set yourself up for success in the long run.

Contact us today for more information on how we can help you.