GENERALLY

The Divorce Act of 1985, which came into effect on June 1, 1986, attempts to make the Divorce process simpler and easier for the parties involved in a marriage breakdown. The Act defines the Court's jurisdiction in dealing with Divorce actions, specifies the grounds by which a Divorce may be granted, and defines the basis for granting custody, access and maintenance orders.

JURISDICTION

A Divorce action used to be commenced by a petition for divorce. The Alberta Courts have recently amended their rules to allow a divorce action to be commenced by way of a statement of claim for divorce. In addition, a matrimonial property action can be combined in the statement of claim for divorce. The Alberta Court of Queen's Bench can deal with a divorce petition or statement of claim for divorce if either spouse has been ordinarily resident in the province for at least one year prior to the commencement of proceedings.

GROUNDS

The Court can grant a Divorce if there has been a "marriage breakdown". This is established if:

CUSTODY AND ACCESS

The Court may, on application by either or both spouses, or by any other person (with leave of the Court), make an order respecting the custody of, or the access to, any or all of the children of the marriage. Custody or access will generally be requested in the statement of claim for divorce by the Plaintiff. In making such an order, the court shall take into consideration the best interests of the child as determined by reference to the condition, means, needs and other circumstances of the child. The Court will not take into consideration the past conduct of the parties unless the conduct is relevant to that person's ability to act as a parent of the child.

Under the Act, the Court is to give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child. The spouse who is granted access has the right to make inquires and to be given information as to the health, education and welfare of the child.

An application for Interim Custody or Access may also be made giving one party custody or access until such time as the Divorce is finally resolved by the Court.

Any Order so granted by the Court may be varied, rescinded or suspended if the Court is satisfied that there has been a change in the condition, means, needs or other circumstances of either former spouse, or any child of the marriage.

MAINTENANCE

On the application of a spouse, the Court may make an order requiring one spouse to pay a lump sum and/or monthly payments to the other spouse, any or all children of the marriage, or the spouse and the children of the marriage. This order can be granted for either a definite or indefinite period of time. In making this Order, the Court takes into consideration the need of the applying spouse and the ability to pay of the other spouse. It also takes into consideration such things as the length of the marriage, the functions performed by the spouses while cohabitating and any existing order or agreement regarding support to which the couple have previously agreed. This order is not granted as punishment and therefore the Court will not take into consideration any marital misconduct of the parties. Instead, the Courts try to recognize any economic advantages or disadvantages arising from the marriage breakdown, try to apportion the costs of child care, and try to relieve any economic hardship of the spouses arising from the marriage breakdown. However, the Courts try to promote the economic self-sufficiency of each spouse, where practical to do so, within a reasonable period of time.

With respect to the maintenance payable for the support of the children, the Court recognizes that each spouse has a financial responsibility to the children and they try to apportion the child care costs according to each spouses' relative ability to contribute.

The Federal Government has proposed amendments to the Divorce Act and other pieces of legislation through its 1996 budget that directly effect child maintenance. The major changes are:

Existing Court Orders, or those made prior to May 1st, 1997 will continue to operate under the existing tax regime (ie. tax deductible by payor, tax payable by recipient). The new child support guidelines will only be deviated from in situations where the adjustment is deemed reasonable and necessary in light of the needs of the children and the means of the parents.  For example:

PROCEDURE

The spouse applying for the Divorce is called the Plaintiff. The other spouse is called the Defendant. The Plaintiff's lawyer prepares and files a document called a Statement of Claim for Divorce with the Courts. This document is then "served" on the Defendant. The Defendant thereafter has 15 days in which to reply (if the Defendant lives out of Alberta, this is expanded to 40 days). If the Defendant does not reply, they can be "Noted in Default" and the Plaintiff can apply to have the Divorce granted without appearing in Court and without any further notice to the Defendant. If the Defendant does not wish to contest the Divorce but wants to be informed of the progress of the proceedings, they can file a "Demand of Notice". If both parties agree, they can also apply to have a Divorce granted without appearing in Court.

However, if the Divorce is disputed, the Defendant must file a Statement of Defence. If their differences cannot be resolved by negotiation outside of Court, the Plaintiff's lawyer will set the matter down for trial and the evidence of the parties will be heard by a Justice of the Court of Queen's Bench. Upon review of the evidence, the Justice will determine whether or not to grant the Divorce and, if necessary, will deal with issues of custody, access, maintenance and costs.

Matrimonial property distribution is not dealt with under the Divorce Act, but must be the subject of a separate legal proceeding. A "Matrimonial Property" action is generally heard at the same time as a Divorce so that all of the issues can be dealt with at once by the same Judge.

This document is intended to be used for information purposes only.  Due to the ever changing nature of law, you should consult with one of our lawyers if you have specific legal questions.

DUHAMEL MANNING FEEHAN WARRENDER GLASS LLP