Divorce in Alberta When You Cannot Find Your Spouse

When your spouse has moved out, stopped answering, or left no forwarding address, a divorce can feel stuck before it starts. The court still needs proof that your spouse has been given the divorce papers, so you cannot simply skip that step.

Alberta's court rules do allow for situations where ordinary service is not practical. This article walks through the usual service rules, the court application for another method, and what generally happens next.

This article covers the law of Alberta.

Why your spouse must be served

A one-spouse divorce starts with the Statement of Claim for Divorce, Form FL-01, under Rule 12.7 of the Alberta Rules of Court. The claim must be served on your spouse, who is the defendant, within one year after the date it is filed. The Court can extend that time, but only on an application filed before the one-year limit expires.

The deadline matters. If the claim is not served within the time or the extended time, no further proceeding may be taken in the action against a defendant who was not served in time.

Ordinary service comes first

A commencement document may be served on an individual by leaving it with the individual, or by sending it by recorded mail addressed to the individual. Service by hand is effective on the date the document is left, and service by recorded mail is effective on the date the individual signs the acknowledgment of receipt. The Court's instructions say you cannot serve the claim personally. A third party must do it, and the Court strongly recommends hiring a process server, who will supply a sworn Affidavit of Service.

Service in Alberta may be proved by an affidavit stating the date and place of service, the method used, and that the person was served. It may also be proved by a written acknowledgment or acceptance of service from the person served. If your spouse is served outside Alberta, the affidavit must also state the real and substantial connection between Alberta and the claim. The Court also publishes separate instructions for service outside Canada under the Hague Service Convention.

If you have even a partial lead on where your spouse is, such as a workplace, a relative or a new city, ordinary service may still be possible. A court will want to know what you tried before it accepts that service is impractical.

Asking the court for substitutional service

If service inside or outside Alberta is impractical, the Court may, on application, order substitutional service. In plain words, that means the court approves a different way of getting the documents to your spouse. The affidavit supporting your application must do the following:

• Explain why service is impractical.
• Propose an alternative method.
• Say why that method is likely to bring the document to your spouse's attention.

Because you must explain why service is impractical, it helps to keep a record of what you have done to find your spouse. Dates, messages sent, people you contacted and addresses you checked all give the court something concrete to work with. What will be enough depends on the facts, so a lawyer can confirm what to include.

After service: what happens next

A spouse who wants to contest the Statement of Claim for Divorce has 20 days to respond if served in Alberta, 1 month if served elsewhere in Canada, and 2 months if served outside Canada. How that timing works after substitutional service can depend on the wording of the court's order, so check the order carefully.

If the defendant does not respond, the plaintiff uses Noting in Default (Form 14, Rule 3.36(1)) as part of the desk divorce package. The court then decides the divorce on paper, without oral evidence, on the Request for Divorce and supporting affidavits. A spouse who contests nothing need not respond and will receive a copy of the Divorce Judgment by mail. If your spouse does file a Statement of Defence or a Counterclaim for Divorce, the case is no longer an uncontested desk divorce.

If you have dependent children, the court must be satisfied that reasonable arrangements have been made for their support. That can add documents to your package, and it is another reason to get advice when your spouse is missing.

What to do next

• Confirm that either you or your spouse has been habitually resident in Alberta for at least one year immediately before the proceeding starts.
• Write down every effort you have made to locate your spouse, with dates.
• Note the date your claim is filed, and keep the one-year service deadline in mind.
• Try ordinary service first where you have a possible address, using a third party such as a process server.
• If service is impractical, prepare an application for substitutional service with a supporting affidavit.
• Speak with a lawyer about your own facts before you apply.

Frequently asked questions