Divorce| Matrimonial Property | Spousal Support | Child Support | What to Bring to an Interview
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Divorce

A Divorce is the legal process which terminates a marriage. To apply for a divorce in Alberta, one spouse must have resided in Alberta for a year. A party applying for a divorce begins by filing a Statement of Claim for Divorce at the Court of Queen's Bench of Alberta. The filed Statement of Claim must be served upon their spouse.

The Divorce Act sets forth the laws in Canada regarding divorce, the laws related to child support, custody and access for children of the marriage and the laws related to spousal support for married spouses. If the party filing for divorce wishes to make any claims regarding child support, spousal support, custody and/or access, they should be listed in the Statement of Claim for Divorce.  A party who is served with a Statement of Claim for Divorce may respond by filing a Statement of Defence and Counterclaim seeking child support, spousal support, custody and/or access.

Alternatively, a party who is served with a Statement of Claim for Divorce can:

1. Ignore it and do nothing.  When no response is filed by the party who is served, this is an Uncontested Divorce.  This is the appropriate response when there are no issues that the party who is served needs to contest.  For example, where there are no children or the children are already grown and self-supporting, where spousal support is not relevant or desired, where there is no matrimonial property or debts or the property and debts have already been dealt with by a Property Contract (prepared by a lawyer and signed by each of the parties in front of a separate lawyer) or where there are no possibly objectionable claims such as a claim for Costs.  An Uncontested Divorce allows both parties to end their marriage at minimal cost. 
   
   
2. File a Demand of Notice.  This allows the party who is served to obtain a copy of the Divorce Judgment to review and consent to prior to it being filed with the Court.  This is not strictly an Uncontested Divorce, but it is not much more expensive and can provide comfort to a party being served where that party wants to be sure that previously agreed upon issues have been worded correctly in the Divorce Judgment (final divorce order).

The parties are not divorced until a Divorce Judgment has been granted by a Justice of the Court of Queen's Bench.  The Divorce Act states that the Court must ensure that appropriate arrangements are made for the payment of child support before a Divorce Judgment may be granted.  A Divorce Judgment does not finalize the division of matrimonial property.

Whether your divorce is complicated, involving issues of support and custody, or simple, the process is complex. Many documents must be filed to complete even the most straight forward divorce and procedural rules must be followed.  It can be a very time-intensive and frustrating project for a non-lawyer to complete.

Deborah Barron recommends that, at a minimum, anyone seeking a divorce should have a consultation with a lawyer to receive a legal opinion regarding their rights.

Matrimonial Property

When a marriage ends, spouses usually want to complete a final division of their assets and liabilities. The Matrimonial Property Act of Alberta sets out the law regarding the division of property which shall be applied if the parties apply to Court for a determination of the division of their property.  The law found in the Matrimonial Property Act has been expanded and clarified through cases which have been decided in our Courts.  Exactly how property is divided and in what proportions, depends upon the specific circumstances of the case. Each province also has a different set of laws that are applied.

The Matrimonial Property Act states that married spouses may conclude a final and legal binding division of their property any way they want, provided they put the terms of the division into a written agreement, they each consult a lawyer separately for a legal opinion regarding the agreement, and they sign the agreement with their lawyers.

It is strongly advised that anyone contemplating a division of marital assets meet with a lawyer to learn their rights prior to discussing a division of assets and liabilities with their spouse. A legal opinion will arm a client with a knowledge of their rights, some tax saving advice and an explanation of the steps which are required to ensure to complete the division in a final, binding manner.

Spousal Support

Under the Divorce Act (1985) a spouse applying for a divorce may make an application for spousal support. The Divorce Act sets out four factors which will assist in determining whether a spouse is eligible for spousal support. These factors are:

• Economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
• Any financial consequences arising from the care of any child of the marriage;
• Relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
• Promote the self sufficiency of each spouse within a reasonable period of time

In determining whether a spouse is eligible for spousal support, many factors must be reviewed. The one factor that is not relevant is the conduct of the spouses. The factors that are relevant include the following:

• The length of the marriage;
• The role of each party within the marriage;
• The income earning ability of the Applicant's spouse;
• The needs of the Applicant spouse;
• Whether the Applicant spouse left the work force during the marriage and if so, for how long; and
• Whether the Applicant spouse is able to return to the work force.

Once it is determined that a spouse may be eligible for spousal support, the next issue is the duration of spousal support, the amount of spousal support and whether the amount shall be paid each month or in one lump sum.

Child Support

In May 1997 the Federal Child Support Guidelines came into effect for the purpose of simplifying the calculation of Child Support. In the majority of situations, the calculation of child support requires three major steps:

First, each parent's Guideline Income must be determined.  This is a fairly simple process for parties who receive regular employment income.   For parties who do not receive income in the form of a pay cheque, such as self-employed parties, parties in receipt of investment income, trust income, disability income, or other sources, arriving at their Guideline income may be more complicated;

Second, the Child Support Guideline Tables are used to obtain the Child Support Guideline amount the payor parent must pay to the primary caregiver parent based on the number of children and the payor parent's Guideline Income.  Please note that the Tables changed effective May 1, 2006.

Third, the payor parent may be required to pay a share of the following additional expenses:

• Extraordinary extracurricular activities
• Extraordinary school related expenses
• Post secondary expenses
• Child care expenses
• Medical and dental premiums; and
• Medical expenses exceeding $100.00 per annum, over health insurance
• If the payor parent is required to pay a share of any of the above expenses, the amount will be calculated as the payor parent's percentage of the combined incomes of the 2 parents. For example, if the payor earns $40,000.00 and the other parent earns $60,000.00, then the payor may be required to pay 40% of these extra expenses (the payor earns 40 percent of the total income).

Other rules for calculating child support may be triggered in special situations, such as:

• Where a parent would suffer from undue hardship from paying the Guideline amount of child support, the table amount may be reduced. It is very difficult to prove undue hardship and a reduction in the table amount will be awarded in only the most dire of situations;
• Where a payor earns in excess of $150,00.00 per annum;
• Where parents share the time they spend with their children in excess of 40%;
• Where parents split caring for the children between two houses such that one child is with one parent primarily and the other child and/or children are with the other parent primarily; and 
• Where the children are over the age of 18 years.

Often computer software is used to assist in the calculation of child support.

What to Bring to an Interview

• Any agreements or Court Orders;
• Family Interview Form and the Matrimonial Property Claims Form;
• A copy of the Vital Statistics Marriage Certificate, if you have one;
• A current photo of your spouse for process serving (can be a group photo);
• Information about your income, your spouse's income and your finances.

Generally, full financial disclosure is exchanged by parties who are getting a divorce and dividing their property. The Alberta Rules of Court contain a form called a Notice to Disclose. It is very common that the list of financial disclosure contained in a Notice to Disclose is exchanged voluntarily in divorce and property proceedings. If you are able to put together some or all of this information, for both you and your spouse, it will be useful for the initial interview and will save the cost and time involved to gather this information, after you have retained counsel.

The list of disclosure contained in a Notice to Disclose is:

• 3 most recent income tax returns and Notices of Assessment;
• 3 most recent financial statements for any business in which either party owns more than 1 %;
• 3 most recent pay stubs;
• 6 most recent bank account statements for all bank accounts, business, personal and joint;
• 3 most recent credit card statements for all credit card, business and personal;
• most recent statements for all investments and other debts;
• most recent pension statement;
• sworn net worth statement (bring the information to complete this only);
• list of childcare expenses, health related, school, extracurricular expenses and post-secondary education expenses for the children;
• a budget, if spousal support is an issue;
• list of any property owned before the marriage, inherited, received as a gift to one party or received as an insurance settlement for an injury, provided the original amount at date of marriage, or when received, can be traced to an existing asset. received as an insurance settlement for an injury, provided the original amount at date of marriage, or when received, can be traced to an existing asset.