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How to start divorce proceedings in Calgary

July 26, 2018

As a lawyer practising in the areas of divorce and family law in Calgary, one of the questions I am frequently asked by clients is: How do I start div...

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How long will it take to obtain my divorce in Calgary?

March 22, 2017

Unfortunately, there is not a straightforward answer to this question.

 

To commence a divorce action in Calgary, one must file either a Statement of Claim for Divorce (SOC) or, if division of matrimonial property is an issue, a Statement of Claim for Divorce and Division of Matrimonial Property.

 

The SOC sets out the claims that the party (called the Plaintiff) wishes to make for custody and access to the children, child support and spousal support.

 

This document must then be served upon the other party (called the Defendant).   The Defendant then has a specific period of time to file a response to the SOC depending upon where the Defendant was when s/he was served.   The amount of time the Defendant has is as follows:

 

If served within Alberta - 20 days;

If served outside of Alberta, but within Canada - one month; and

If served outside of Canada - two months.

 

If the Defendant does not file a response with the Court and serve it upon the Plaintiff within the above periods, the Plaintiff can file a document called a Noting in Default which will prevent the Defendant from filing a response.   If a Noting in Default is granted by the Court, the Plaintiff may proceed without any further involvement of the Defendant.

 

If a Defendant does file a response within the specified time, the parties are  now in a contested divorce situation and, in theory, will need to proceed to trial to have all of the issues in dispute determined by the Court.   However, proceeding to trial in a divorce action is very rare and most actions do not end in a trial.  Usually, the parties will reach a settlement and, once they have done so, they will then forward to the Court a desk divorce package.

 

Clearly, the amount of time it takes the parties to reach a settlement varies a great deal between cases.   In essence, the more the parties argue with one another, the longer it takes.

 

A desk divorce package contains all of the documents that the Court needs to grant a divorce.  One of these documents needs to be signed by both parties, or their representatives.   If the content of all of the documents meet with the approval of the Court, the Court will grant a Divorce Judgment without any of the parties having to appear in Court.

 

Once the Court has granted a Divorce Judgment, it mails copies of the Divorce Judgment to the parties. However, normally at this time, the parties are still not divorced. This is because either party could appeal the Divorce Judgment.  Each party may appeal the Divorce Judgment up to 30 days after the Divorce Judgment is granted and, as such, the Divorce Judgment itself actually states that it does not take effect until the 31st day after the date of the Divorce Judgment.

 

At any time after the 31st day after the date of the Divorce Judgment, either party may ask the Court to issue a Certificate of Divorce and this is the document that "proves" that the parties are divorced.

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