- A spouse who does not file a Statement of Defence or Demand for Notice within the deadline can be noted in default.
- Proper service matters: the claim must be left with your spouse personally, by someone other than you, and proof of service must include a picture.
- After default, you may be able to finish the divorce on paper through a desk divorce application, but the Court still reviews the file.
You have served your spouse with the divorce papers and nothing has come back. Silence is common, and it does not stop the divorce from moving forward. It does mean you need to follow the right steps in the right order.
This article walks through the deadline for a response, what noting in default means and how an unanswered claim can be finished. It is general information and not a substitute for advice on your file.
This article covers the law of Alberta.
First, check that the claim was served properly
Before you treat the silence as a non-response, confirm that service was done correctly. A divorce claim must be served by leaving a copy with the individual being served, not with their lawyer, unless the Court orders otherwise. The person who serves must be someone other than you.
Proof of service of a statement of claim for divorce must include a picture of the individual served, unless the Court orders otherwise. Keep that proof safe, because you will need it later. If your spouse is outside Alberta, the Alberta Rules of Court have further rules on service outside Alberta and in Hague Convention countries, which are worth confirming with a lawyer.
How long your spouse has to respond
The time to respond is counted from service of the Statement of Claim. Your spouse's options are to file a Statement of Defence (Form FL-4) if they oppose the claim, a Demand for Notice (Form 13) if they want notice of hearings but do not oppose it, or a counterclaim if they want their own divorce or property relief.
| Where your spouse was served | Time to respond |
|---|---|
| In Alberta | 20 days |
| Outside Alberta but in Canada | One month |
| Outside Canada | 2 months |
The response must be filed and also served on you within that time. Do not count the days from the date you filed the claim; count from the date of service.
Noting your spouse in default
If the deadline passes without a statement of defence or demand for notice, you may file an affidavit of service of the statement of claim and then take one of two paths. You can enter judgment under Rule 3.38 or 3.39, or you can have the court clerk enter a note in Form 14 that your spouse is noted in default. The Court's divorce forms list shows the Noting in Default as Form 14 (CTS3784) for uncontested divorces with and without children.
Noting in default is generally the first step toward finishing an unanswered divorce. There are limits. For example, a judge still reviews a desk divorce on an unanswered claim and may direct an appearance or ask for further evidence. Whether a late response is still possible can depend on what has already happened in your file, so ask a lawyer before assuming either way.
Finishing the divorce on paper
Once your spouse has been noted in default, you can apply for a divorce judgment without any appearance, often called a desk divorce. The application consists of a Request for Divorce (Form FL-21), a supporting affidavit (Form FL-23) and a proposed Divorce Judgment (FL-25) or Divorce Judgment and Corollary Relief Order (FL-26). Your application must also include the Desk Divorce Package Checklist.
A judge still reviews it. The Court may grant the judgment, direct an appearance, require further evidence or send you to a trial on oral evidence. If there are children, the court must be satisfied reasonable child support arrangements have been made and must stay the divorce until they are.
You must also meet the basic requirements: one year of residence in Alberta by either spouse and breakdown of the marriage, usually shown by living separate and apart for at least one year. The Court's uncontested forms do not deal with property division.
What to do next
- Check the date and method of service, and who served your spouse.
- Count the response period from service, using the right period for where your spouse was served.
- Make sure you have proof of service, including a picture of your spouse.
- Confirm that nothing has been filed by your spouse, such as a defence or demand for notice.
- Prepare the affidavit of service and the noting in default request.
- Speak with a lawyer if your spouse lives abroad, if children or property are involved, or if you are unsure of the next step.
Frequently asked questions
Can I get divorced if my spouse ignores the papers?
It may be possible, but it depends on your situation. If your spouse files nothing, you may have them noted in default and apply for a divorce judgment. You can start the action before a year of separation has passed, but judgment cannot be given until the spouses have lived apart for a year. Either spouse must also meet the one-year residence rule, and the Court may still direct an appearance or require further evidence.
Can a friend or family member serve the papers?
The person who serves must be someone other than you. The claim is served by leaving a copy with your spouse, and proof of service must include a picture of your spouse, unless the Court orders otherwise.
What if my spouse is outside Alberta or Canada?
The response time is longer: one month if served outside Alberta but in Canada, and 2 months if served outside Canada. The rules on service outside Alberta and in Hague Convention countries are separate, so get advice before serving abroad.
Do I still need to go to court if my spouse is noted in default?
Not necessarily. A desk divorce on paper is available where the defendant has been noted in default. A hearing is required only if the Court orders one.
Sources
- Divorce Act, s. 3(1) — Justice Laws (federal)
- Divorce Act, s. 8 — Justice Laws (federal)
- Alberta.ca – Get a divorce — alberta.ca
- Alberta Rules of Court, r. 12.55 — kings-printer.alberta.ca
- Court of King's Bench – Divorce Forms and Instructions — albertacourts.ca
- Divorce Act, s. 11(1) — Justice Laws (federal)
- Court of King's Bench – Desk Divorce Package Checklist notice — albertacourts.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
This is a family law question
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