The two basic ways to resolve a dispute that arises on a marriage breakdown are by agreement or through the court.
In Alberta, there are distinct levels of courts which deal with different aspects of family law.
The Provincial Court, Family Division has the power to deal with custody, access and spousal and child support issues. It has no power to grant a divorce or to deal with the division of family assets.
Provincial Family Court procedure is, however, more informal than that of the Court of Queen's Bench and it is possible for disputes to be resolved more quickly and economically than in the Court of Queen's Bench. There are Provincial Family Courts in most municipalities.
The Court of Queen's Bench has the power to deal with custody, access and spousal and child support issues as well as issues of division of property and divorce.
In both the Court of Queen's Bench and the Provincial Court, Family Division it is possible to obtain interim ("temporary") orders for child support, custody and access and other matters. Interim orders are usually obtained at the beginning of the case and remain in place until the case has been completed and a final decision made. Interim orders can also be made for one spouse to have exclusive possession of a family asset, such as the family home, for the sale of assets or for the prohibition of the sale of assets.
While both the Provincial Court, Family Division and the Court of Queen's Bench are making efforts to streamline the court process and to shorten the waiting time to have a case decided, obtaining a final decision in a family case can still take many months.
For more information about the Court of Queen's Bench, go the Alberta Courts Website
A Guide to the Court of Queen's Bench and Family Law Process
Once a divorce is commenced, the goal of the Court is to end the marriage and decide such issues as child custody, access, support, property and debt division and deal with responsibility for legal costs.
Roughly 90% of divorces end up proceeding on an uncontested basis. This means that most family cases are settled between the parties, whether by separation agreement or by embodying the agreement in a consent divorce order dealing with corollary relief.
Commencement of Action by Plaintiff
Proceedings at the Court of Queen's Bench are commenced by a document called a Statement of Claim. If you are proceeding in Provincial Court, Family Division, the proceedings are commenced by a document called a Claim. In either case the original document must be personally served on the other party. In the case of a Statement of Claim, the other party will have 15 days after the Statement of Claim is served to file a Statement of Defence or get an extension of time to file a defence. In practice, most lawyers will grant an extension of time to file a Statement of Defence so that the other party can prepare a proper defence. If proceedings are commenced by a Claim filed at Provincial Court, then there will be a return date on the Claim whereby both parties must attend at the court to speak to the matter.
Provincial Court Procedure
Because the Provincial Court Family Division is very busy, they are very pro-active in trying to get parties to settle their differences. When you attend at court for the first time, the court may make an interim order if something needs to be done right away. The court will likely refer the parties to mediation or judicial dispute resolution to see if things can be worked out. If the parties can come to an agreement, the court will incorporate that agreement into an order of the court. If mediation or judicial dispute resolution fails, then the court will direct that the matter be set down for a hearing or a trial. Since the court is very busy, it is not unusual for a trial date to be set 9 months to a year after the initial claim is filed. The parties will be expected to produce witnesses and give oral evidence in their own behalf at the hearing or trial.
Court of Queen's Bench Procedure The procedure at the Court of Queen's Bench is quite different. It is much more document intensive. If there are issues of support or property, the Plaintiff will usually file and serve on the other party a Notice to Disclose. The other party will have 30 days in which to produce to the Plaintiff a number of financial documents which are listed on the Notice to Disclose. If either party wants an order from the court for support, custody, access, or possession of the matrimonial home, then the party seeking the relief must file a Notice of Motion supported by an Affidavit. The Court of Queen's Bench is also very busy, so it has adopted 2 measures designed to minimize conflict and encourage parties to come to an agreement without the court's intervention. Prior to making any application to the court for relief, you must attend a Parenting After Separation Seminar, and you must attend a Dispute Resolution meeting. The Court will waive these 2 prerequisites in emergency circumstances.
If the parties are unable to resolve their differences at the Dispute Resolution meeting, then it may be necessary for one party to file a Motion and ask the court for interim relief. Because there is a significant wait until the parties can take the stand and give oral evidence concerning their family matter, Courts are often asked to provide interim relief orders. These interim relief orders deal with management of family law issues until trial. For example, who will live in the home, should the home be listed for sale, who will have custody of the children, how much child support should be paid, should spousal support be paid and if so in what amount, should a spouse be restrained from contacting the other spouse or disposing of assets pending trial, how should a business be run pending trial, should there be interim advances of monies to parties pending trial? It is called interim relief because it is not intended to be permanent. It is merely intended to give the litigants some framework while they work out an agreement or have a trial of the issues. In practice, the terms of interim orders frequently incorporated into final orders because of the cost and time involved in taking the matter to trial.
It is often the case that the issues between you and your spouse can be narrowed down during the litigation process. If the issue is relatively narrow, it may be amenable to be heard by the court as a special application. This is an application based upon Affidavit evidence. If issues are not amenable to a determination in a Special Application, then it will be necessary to have discoveries. A discovery is a process whereby each party gets the opportunity to examine the other party on oath. Discovery may be made of documents, for example, income and asset documents and expense and debt documents, documents relating to the parents ability to parent, documents relating to businesses and documents which show a spouse has disposed of money are all subject to being discovered by the opposing spouse. Once discoveries have been held, the matter can be set down for trial. Each party gets the opportunity to make their case at trial and all outstanding issues will be determined. It is not uncommon in more complex cases for psychiatrists, psychologists, business valuators and accountants to be called to testify on custody and financial issues. These people are referred to as experts
Most parties agree that it is better to resolve a case by agreement rather than to risk putting a stranger in charge of a dissolution of your marriage. However, it is important that parties understand that settlement - just for the sake of settlement - makes no sense. We feel that the purpose for which we are hired is to obtain more than you could get after the payment of our legal fees than if you obtain a settlement on your own. It is critical that you do not enter into any settlement discussion of a final nature without consulting with your lawyer. Warning: It is not uncommon for uninformed parties to be held to an unfair settlement.
Critical Rules for a Party to a Divorce to Follow
Some useful advice is provided by the MacLean Law Group, as follows:
"Try to deal with the stress of the case and with your spouse and children in a reasonable, mature fashion.
Never enter into an agreement with your spouse without the benefit of your counsel's legal advice.
Remember if you criticize your spouse in front of the children you diminish your own child as well.
Remember, anything you say to your spouse can and will likely show up in a written document or be presented to the judge. Thus, do not say anything that you would not feel comfortable having repeated in front of the judge hearing your case.
Do not hide evidence, or mislead the court in the proceeding. Even one misstatement is too many and will cause your credibility on other issues to be sadly lacking. It may be that a judge disbelieves all of your truthful statements, because of one careless misstatement made during the proceedings. Do not attempt to hide evidence for assets or to destroy or get rid of financial documents.
Your divorce will be stressful, but it will not be the end of the world.
It is not uncommon for spouses to be angry at the start of the divorce, but to gain perspective and become more rational as the proceedings go on.
Remember that your spouse may not have been the greatest husband or wife during the marriage, but that you will be parents forever of your children."
Variation and Enforcement
In some cases after a trial has been completed, circumstances of the parties change such that a variation of support whether spousal or child or a variation of custody may need to occur. Basically, the parties will need to show there has been a substantial change of circumstances since the Order was made and that such a change, if known to the judge at the time of the Order would have led to a different court order being made.
If you are seeking to enforce a child or spousal support order, you should be aware of the Maintenance Enforcement Program. Click here for more information.