Do You Have to Go to Court to Get Divorced in Alberta?

If you are heading into your first divorce, the idea of standing in a courtroom can be the scariest part. For many people it does not happen at all.

This article explains when a divorce is done on paper, what the paper process involves, and the situations where a judge may want to see you.

This article covers the law of Alberta.

What a desk divorce is

A desk divorce is a judgment granted without any appearance by the parties or lawyers. Under Rule 12.50(1) of the Alberta Rules of Court, you can apply for one where:

• both parties consent
• the defendant has not filed a defence or demand for notice and has been noted in default
• the Court orders it on application
• a joint statement of claim was filed and no party has withdrawn

If you are representing yourself and consenting, your consent must be accompanied by an affidavit of execution.

How the process starts and what your spouse can do

A divorce proceeding in Alberta starts by filing a Statement of Claim for Divorce in Form FL-1 in the Court of King's Bench and serving it under Rule 12.55 of the Alberta Rules of Court. The claim must be served by leaving a copy with the person being served, not with their lawyer, unless the Court orders otherwise, and the person who serves it must be someone other than you. Proof of service must include a picture of the person served, unless the Court orders otherwise.

A spouse who opposes the claim files a Statement of Defence in Form FL-4, and a spouse who wants notice of hearings but does not oppose files a Demand for Notice in Form 13. The time to respond is counted from service: 20 days if served in Alberta, one month if served outside Alberta but in Canada, and 2 months if served outside Canada.

If the defendant files neither, you may, after filing an affidavit of service, ask the court clerk to enter a note in Form 14 that the defendant is noted in default. That is the step that opens the door to a desk divorce on an unanswered claim.

What goes into the paper application

A desk divorce application consists of a Request for Divorce (Form FL-21, or FL-22 for a joint request), a supporting affidavit (FL-23, or FL-24 for a joint affidavit), and a proposed judgment (FL-25, or FL-26 if it includes corollary relief).

The Court's uncontested forms cover only divorces where parenting, decision-making and support are settled, and they do not deal with property division. Handwritten divorce judgments are not accepted, and fillable PDF forms are provided.

Every package must include a Desk Divorce Package Checklist and copies of the previously filed materials it lists, and submissions without the checklist are not accepted.

When a judge may want an appearance

Once the clerk is satisfied the documents meet the rules, they go before the Court. The Court may grant the judgment, direct an appearance, require further evidence, or direct you to proceed to trial on oral evidence. A hearing is therefore required only if the Court orders it.

The only ground for divorce is the breakdown of the marriage. Breakdown is established if the spouses have lived separate and apart for at least one year immediately before the divorce is decided, or if the other spouse has committed adultery or has treated the applicant with physical or mental cruelty that makes continued cohabitation intolerable. The separation period is not interrupted if you resume living together for a period, or periods totalling, not more than 90 days with reconciliation as the primary purpose, and Alberta.ca says you may live under the same roof and still be separated, but you must give evidence of the separation. You can start the action before the year has passed, but judgment cannot be given until the spouses have lived apart for a year.

The judge must also be satisfied that reasonable arrangements have been made for the support of any children, and must stay the divorce until they are. If the divorce is based on adultery or cruelty, the court has further matters to check. If you have dependent children, Alberta.ca says you must take the Parenting After Separation course.

Filing, and when the divorce is final

Self-represented parties' Statement of Claim for Divorce with Children should be reviewed by Court and Justice Services before filing, and can then be filed by Interac, Visa or Mastercard. Documents may also be filed by email if they meet the Court's format and naming rules, or they will not be accepted. Do not send the same document both by email and in person.

If you are unrepresented, you must provide a stamped addressed envelope, though the Court allows an email address on the checklist, and the judgment is then emailed.

Even after the judgment, you are not divorced yet. A divorce generally takes effect on the thirty-first day after the judgment is rendered. The court may fix an earlier date in special circumstances if the spouses agree not to appeal or any appeal has been abandoned, and a pending appeal delays the effective date. If the case goes to the Supreme Court of Canada, the divorce takes effect on the day that court's judgment is rendered, unless the divorce is voided on appeal.

The Court says the Certificate of Divorce is not available until 31 days after the judgment is granted, and requests made through its online form may take up to 10 business days, excluding mailing time.

What to do next

• Decide whether your divorce is likely to be uncontested and whether parenting and support are settled.
• Download the fillable forms from the Court and check that you are using the current versions.
• Complete the Desk Divorce Package Checklist.
• Check whether you must take the Parenting After Separation course.
• Ask a lawyer to review your package if property, children or service are complicated.

Frequently asked questions