Which Court Handles Divorce in Alberta? King's Bench Explained

Many people are not sure where a divorce actually happens. You may have heard of Provincial Court, Family Court and the Court of King's Bench, and it is easy to start at the wrong counter.

This article explains which Alberta court has authority over divorce, which related issues can be handled by another court, and what else decides whether an Alberta court can hear your case.

This article covers the law of Alberta.

The court that grants divorces

The Court of King's Bench of Alberta has sole jurisdiction over divorce in Alberta. It also has sole jurisdiction over the division of property.

The Court of Justice, which used to be called the Provincial Court, cannot grant a divorce, and neither can any other Alberta court. The King's Bench also handles child and spousal support and parenting (custody and access) matters.

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. If both spouses agree, Alberta also provides a Joint Statement of Claim for Divorce, Form FL-08. A claim that includes dividing family property uses a different form: Statement of Claim for Divorce and Division of Family Property, Form FL-03, Rule 12.9.

What the Court of Justice can still do

Not every family issue has to go to King's Bench. Matters other than the divorce itself, such as guardianship, parenting and contact under Alberta's Family Law Act, are not exclusive to the King's Bench, because the Court of Justice also has jurisdiction under that Act.

How an existing Family Law Act order is affected once a divorce starts depends on your situation, so it is worth confirming with a lawyer. If you already have an order from one court and are starting a divorce in another, it is worth asking a lawyer how the two fit together.

Can an Alberta court hear your divorce?

A court in a province can hear a divorce only if either spouse has been habitually resident in the province for at least one year immediately before the proceeding starts. Habitually resident generally means that Alberta is where you actually live, not just a place you are visiting.

Only one spouse needs to meet this test. If neither of you has lived in Alberta for the full year, you must wait.

• Support or parenting orders sought on their own after a divorce can be heard if either former spouse is habitually resident in the province when the proceeding starts, or if both accept the court's jurisdiction. The one-year rule is not the test for those proceedings.
• Spouses married in a Canadian province who do not live in Canada may, in limited cases, apply to the court of the province where they married.

Having the right court is only part of it. A court may grant a divorce on the single ground that the marriage has broken down. Breakdown is established in only three ways: living separate and apart for at least one year immediately before the divorce is decided and when the proceeding started, adultery by the respondent, or physical or mental cruelty that makes continued living together intolerable.

• Spouses can be separated while still under one roof only if they are in fact living apart, which is a question of fact for the court.
• The separation period is not interrupted if you resumed living together for periods totalling no more than ninety days with reconciliation as the primary purpose.
• Adultery and cruelty are alternatives to the one-year separation, so neither needs a year of separation first.
• If you rely on one-year separation, you can start the divorce before the year is up, but you cannot ask for the Divorce Judgment until the year has passed.

How the case moves and when it ends

The Court's instructions say the plaintiff cannot serve the Statement of Claim personally; a third party must do it. A spouse who is served and wants to contest has 20 days to respond if served in Alberta, 1 month if served elsewhere in Canada, and 2 months if served outside Canada. A contested divorce is no longer an uncontested desk divorce.

If the other spouse does not respond, the plaintiff uses Noting in Default as part of the desk divorce package, and the court decides the divorce on paper, without oral evidence. Filing a Statement of Claim for Divorce involves a court fee, and fees and filing methods can change, so confirm the current amount with the Court or on the Alberta.ca court fees page before you file. If you cannot afford court filing fees, Alberta has a fee waiver that depends on household income, and you apply at the same court where you plan to file. Whether a waiver applies to a divorce filing is worth confirming with the registry, and other costs such as search requests or photocopying may still apply.

A divorce generally takes effect on the thirty-first day after the judgment is rendered. The exceptions are that a court may make it take effect earlier if it finds special circumstances and the spouses agree and undertake that no appeal will be taken, and that a pending appeal can delay the effective date. Once it takes effect, it has legal effect throughout Canada.

In Alberta, after the Divorce Judgment is signed, you wait 31 days and then request the Certificate of Divorce through the online request form on the Court of King's Bench website.

What to do next

• Confirm that you or your spouse has lived in Alberta for at least one year.
• List which issues you need decided: divorce, property, support, parenting.
• Check whether any Family Law Act orders already exist.
• Gather the dates you separated and any periods you lived together again.
• Ask a lawyer how to sequence the court steps if more than one court is involved.

Frequently asked questions