Guardianship means all of the powers and responsibilities relating to the raising of a child. If the guardians can't agree on how these powers and responsibilities will be shared between them, or how the time with the children will be shared, they can apply to the court for a Parenting Order or a Custody and Access Order.
For more information on guardianship, see General Information on Guardianship, Parenting, Custody, Access and Contact.
In the past, we have used the terms "custody" and "access" to set out how separated parents will make decisions about their children and share time with their children. These terms are still in The Divorce Act, so are seen in documents relating to a couple's divorce. However, in Alberta, The Family Law Act uses the term "parenting" to set out how decisions are made and time is shared. When two guardians do not live together, they will enter into a Parenting Agreement or Order.
For more information on Custody and Parenting, see General Information on Guardianship, Parenting, Custody, Access and Contact.
In a divorce case, if the children live primarily with one parent, the agreement or order will usually spell out the time that the children will be with the other parent and call that time "access".
In other cases, if two guardians are dividing up the time with the child, that will be spelled out in the parenting agreement or order. The agreement or order will often say that one guardian will have parenting time on specific days and the other guardian will have parenting time the rest of the time.
If a person who is not a guardian applies to the court for an order allowing them to spend time with the child, that is called "contact". A Contact Order gives the person only the right to spend time with the child, not to make any decisions about the child.
For more information on Access and Contact, see General Information on Guardianship, Parenting, Custody, Access and Contact.
A parent with sole custody makes all of the major decisions about the child, and the child will live primarily with that parent. They may consult with the other parent, but they make the final decision. The other parent usually has access, and can make day to day decisions during the access time.
When two parents have joint custody, they make all major decisions about the children together. Joint custody does not mean that the child spends equal time with each parent, although that sometimes happens. Other times, the child will live primarily with one parent and the other parent will have access.
Shared custody is when the child lives, more or less, half time with each parent. The Federal Child Support Guidelines defines shared custody as the child living more than 40% of the time with each parent. In almost all cases, parents with shared custody will also have joint custody.
Split custody is when there are two or more children, and some of the children live primarily with one parent and the rest live primarily with the other parent. In most cases, parents with split custody will also have joint custody.
You should speak to a lawyer about your parental rights and obligations.It is important to note, however, that it is not possible to "give up" your parental rights so you can stop paying child support.
There is no magic age when a child is considered "old enough" to decide for themselves which parent they want to live with. If the parents cannot agree, the judge will decide custody and access, or parenting issues on the basis of the best interests of each and every individual child – until they reach the age of 18.
The judge may listen to the wishes of a child, provided the judge feels that the child is mature enough to give their opinion. The older the child is, the more weight the judge will put on the child's wishes.
Not automatically. However, you can make a court application to have the Order registered and enforced in Alberta. You will need a certified copy of the Order you want to have registered here. See Extra Provincial Enforcement of Custody Orders Applications.
Yes. Child support and time with your children are two different issues. If you are not seeing your children, the court may be able to help.
Most of the time, you need the other parent's consent to cross the border with the children.
You should have a notarized letter signed by the other parent allowing you to travel outside of the country with the children or a court order permitting you to travel outside of the country with the children.
If there is another living parent, then that parent is likely also a guardian. However, if you believe that you are the only guardian of the child, you can make a court application for an order saying that. Contact Family Justice Services.
If the other parent is a guardian, then you cannot make an application for sole guardianship. If you want to terminate the other parent's guardianship, you should speak to a lawyer. If, after speaking to a lawyer, you decide to go ahead with this type of application, contact Family Justice Services.
No. You can file documents with the Court prior to the birth of the child but you must set your first Court date after the birth of the child.
A grandparent does not have any guardianship powers or responsibilities with respect to their grandchildren. However, a grandparent may make an application to the court for guardianship or contact in some cases. Contact Family Justice Services.
If the other parent is a guardian of the child, then, unless you have a written agreement or court order that says otherwise, you must consult with the other parent before you move.
If you are the sole guardian of the child, or if your written agreement or court order says you can move without the other parent's consent, then you can do so.
This is a term usually used by the court to mean a report completed by a social worker or psychologist that makes a recommendation as to how parenting should work (decision making and time with the child). For more information, contact Family Justice Services.
This is a term used by the court to mean a report ordered by the court and completed by a social worker or psychologist that makes a recommendation as to how parenting should work (decision making and time with the child). For more information, contact Family Justice Services.
This is a term used by the court to mean a series of meetings ordered by the court and held between a social worker or psychologist and the parents. The meetings may include may include psychological testing, counseling and educational sessions. The purpose is to help the parents work towards a resolution of the issues related to parenting. For more information, contact Family Justice Services.
Same sex relationships are treated the same as opposite sex relationships by the courts in Alberta. However, if you are not the biological parent of the children, you should talk to a lawyer.
Check your local Yellow Pages under "Laboratories" or search for a "DNA paternity testing service" on the internet. The prices may vary from company to company. If you are asking for a DNA test in the course of a court hearing, you will have to pay the cost up front, but the judge can ultimately decide who will be responsible for the cost of the testing.
It is important for a testing company to ensure a 'chain of evidence' process be established within their procedures to make sure the identity of the DNA donor can be verified. One way to make sure this process exists is to ask if the testing company is accredited by the Standards Council of Canada for Forensic Biology DNA and to view the company's accreditation.
When DNA testing companies have their laboratories or testing facilities in the United States or are owned by a United States company, your personal data, including DNA samples, are under the authority of the USA Patriot Act, which may conflict with Alberta's privacy protection laws. You may want to ask about the ownership and location of the testing facilities to make sure your personal information is kept private.
Note that in Alberta, the judge can not order a party to complete a DNA test. If both parties agree to do the test, that is fine. If one party refuses, the judge may make an "adverse inference", that is, if the alleged father refuses to complete the DNA test, the judge may assume that he is, in fact, the father. If mother refuses to complete the DNA test, the judge may assume that the alleged father is not, in fact, the father.
No. The court assumes that the person who is caring for the children is capable of making reasonable decisions about their care, including decisions about how to spend the child support received.
Yes. Seeing the children is a separate issue from child support. The other parent will be allowed to see the children during the time granted to them under a parenting, custody/access or contact order regardless of the fact that they may have missed paying child support.
The Maintenance Enforcement Program (MEP) is set up to collect the support amounts that have been ordered by the court. MEP does not have the power to change the monthly amount that your court order or agreement says that you must pay in any circumstance.
MEP can negotiate the amount that you are to pay on arrears (i.e. the amount that you are behind in paying). If you are able to pay the monthly amount of support, but cannot pay all of the arrears, then you should talk to MEP to work out a payment plan for the arrears.
If you can't afford the monthly amount of child support or if you can't reach an agreement with MEP on payment of the arrears, then you can apply to the court to vary the court order that is currently in place. You may also be able to get a temporary stay of enforcement which will stop some of the enforcement steps that MEP can take and may give you some time to get caught up on any arrears of support that you may owe.
For more information, see Child Support Variation.
To register with the Maintenance Enforcement Program (MEP), you must have one of:
- a signed Maintenance Enforcement Support Agreement;
- a signed Child Support Services Support Agreement; or
- a court order for support.
If you and your former spouse / partner are able to agree on an amount of support, then you can easily do up a Maintenance Enforcement Support Agreement. If you cannot agree on support, then you must bring a court application for support.
If you are receiving AISH or Income Support, contact Child Support Services.
Once you have an Agreement in the proper form, or a Court Order, send a copy to Maintenance Enforcement, along with the registration forms.
No. There are two reasons for this. First, the information that you file with the Canada Revenue Agency is confidential and cannot be released to anyone without your consent. Second, the judge is allowed to make a decision based only on the evidence presented to the court either by you or by the other party. The judge does not do any investigation on their own to find information that they may need to make a decision.
The judge must make the decision based on the evidence that is given to them by either you or the other party. If your former spouse / partner works under the table, it is up to you to provide evidence to the judge that shows that. A lawyer can give you some advice about what kind of evidence may be helpful.
Maybe. If you were married to or lived in a relationship of interdependence of some permanence with the child's parent, and if you stood in the place of a parent to the child (i.e. treated the child as if the child was your own), then you may have to pay child support.
There are many factors the judge will look at to decide if you stood in the place of a parent. Some of these are:
- How long you were involved with the child;
- Whether the child saw you as a parent;
- Whether you were involved in the care, education or discipline of the child; and
- Whether you supported the child.
Parents in same sex relationships are treated the same as in heterosexual relationships. If your former spouse / partner is a parent, or if they stood in the place of a parent (see the previous question), then you can apply for child support from them.
Yes. The Family Law Act says that a person who has care and control of a child can apply for child support from the parents of that child.
The answer depends upon whether you will be making the application under the Divorce Act or under the Family Law Act.
The Divorce Act says that you can apply for support for a child if the child is still dependant by reason of illness, disability, or other cause. The Divorce Act does not set a limit in terms of the child's age.
The Family Law Act says that you can apply for child support if the child is still dependant because they are going to school on a full time basis. "Full time" is as it is defined by the school that the child is attending. Support can be ordered to be paid only up to age 22.
At minimum, you will need:
- Your complete tax returns for the last 3 years.
- Your income tax Notices of Assessment from Canada Revenue Agency for the last 3 years.
- Your pay stubs showing your income from all sources in this calendar year, or a letter from your employer(s) showing your total income so far this year. These must include overtime, bonuses and commissions.
- If you are self employed or own your own corporation – your financial statements for the business for the last 3 years.
- If you own your own corporation – your corporate tax returns for the last 3 years.
For other items, or more specific details, see the Notice to Disclose form.
These documents must be attached to a properly sworn Statement or Affidavit if you wish to use them in court.
The general rule is that the judge must look at the most current income information available, and base the child support on that.
In many cases, though, it is hard to know exactly what your income will be this year, so the judge may find it easier to use the income from your last year's tax return.
The judge may use the average of the last 3 years' incomes when that is the most reasonable way to estimate ongoing income. An example of this might be someone who is a commissioned salesperson, and has an income that varies widely from year to year.
If the two of you are settling your child support by agreement, then you can choose which income you want to use. Remember though, that once you choose one way of determining your income, you should not change that in the future, unless there is a dramatic change in your job. For example, if you have been using a 3 year average, you can't argue that you should now use current income, just because you are having a bad year. However, if you change careers from a commission salesperson to someone with a regular paycheque, that may be a good time to change the way you determine your income.
If your child is over the age of majority, and is no longer dependant, then you may no longer have to pay child support. You may wish to make a court application for an Order saying that child support is no longer payable for that child.
If you pay through Maintenance Enforcement, contact their office.They will contact the recipient and request a child status update from the other parent. If that shows that the child is no longer dependant, they will stop enforcing the support for that child.
In most cases, you do not have to pay child support for a child who has withdrawn from their parents' charge. If you and the other parent do not agree that child support should no longer be paid, you may make a court application for an order that child support is no longer payable for that child.
If the Order is from a reciprocating jurisdiction, and it is registered with the Alberta Court of Queen's Bench and Alberta Maintenance Enforcement, it can be enforced.
You must have a certified copy of the Order. If you do not, contact the court where it was granted, and ask for that. Make 2 copies of the certified copy of the Order, and bring all three to the Court of Queen's Bench. They will open up a court file and give you a court file number. They will keep the certified copy. Send one of the copies to Maintenance Enforcement, along with the registration forms.
If the other party to the order lives outside the country, then Maintenance Enforcement may not be able to enforce the order for you. Contact Maintenance Enforcement for more information.
If both parents are now living in Alberta, you can apply to change the order in Alberta. If your order is from another province/country and the other parent also lives in that other province/country, then as long as Alberta has an agreement with that province/country, you can file an application here to change your child support order. A decision will be made by the other province's/country's court without you having to travel there.
For more information, see our information on child support variation.
Contact Family Justice Services to find out if the child support agreement or order is the correct amount based on your current income.
If your child support seems to be too high for your current income, then you can apply to the court to lower it.
If, however, your child support seems to be the correct amount, talk to a lawyer to see if there are any options for you or talk to a Credit Counsellor.
All orders granted under the Child Support Guidelines are global orders. A global order is an order that sets one amount for all of your children rather than a specific amount of support per child. Because Guideline orders are global, it means that your child support amount does not automatically change if one of the children is no longer entitled to child support. The only way to make the change automatic is to have a step-down term in your child support order that states the amount of child support you will pay if one child is not longer entitled to child support, if two children are no longer entitled to child support and so on.
If you were married or lived in an adult interdependent relationship with another person, you each have an obligation to support each other. However, no one is automatically entitled to spousal support, so you should talk to a lawyer to see if you would be entitled, and if so, how much your spouse / partner may be ordered to pay.
If your agreement is in the Maintenance Enforcement Support Agreement form then you can register the Agreement with Maintenance Enforcement. Follow the instructions with the Agreement.
If your agreement is in any other form, then you cannot register it with Maintenance Enforcement. You will have to apply to the court for a spousal support order first.
If the Order is from a reciprocating jurisdiction, and it is registered with the Alberta Court of Queen's Bench and Alberta Maintenance Enforcement, it can be enforced.
You must have a certified copy of the Order. If you do not, contact the court where it was granted, and ask for that. Make 2 copies of the certified copy of the Order, and bring all three to the Court of Queen's Bench. They will open up a court file and give you a court file number. They will keep the certified copy. Maintenance Enforcement, along with the registration forms.
If the other party to the order lives outside the country, then Maintenance Enforcement may not be able to enforce the order for you. Contact Maintenance Enforcement.
If the two of you were married or Adult Interdependent Partners, then you are treated the same as opposite sex partners for the purposes of spousal support. You should talk to a lawyer to see if you would be entitled, and if so, how much your former spouse / partner may be ordered to pay.
Yes you can. Talk to the Law Information Centre (LInC) for more information.
If the Order was made without notice to the other party (e.g. an Emergency Protection Order or a Restraining Order Without Notice), then it is usually only in place for a short period of time before it is reviewed by the Court of Queen's Bench. This allows the other party to file their own evidence and make their own arguments before a longer term Order is made.
If the Order is made after the other party has been served, or on the review of a "without notice" Order, then it may be in place for anywhere from 3 months to a year. In extreme cases, a Restraining Order may be in place for longer than a year, however a Protection Order can only be in place for one year.
Yes. You should start your application to extend the order two weeks or more BEFORE the order ends. Contact Family Justice Services to find out how to make that court application.
If you have a court date coming up for a review of the order, go to court on the court date and explain to the judge that you want to cancel it and why. You may have to write down your reasons in an Affidavit.
If there is no court date coming up, you will have to apply to the court to cancel it. The other party will have to be served, and you must arrange for someone else to serve them. Use the General Application package to make the application.
There is no such thing as a "legal separation" in Canada. Sometimes when people say they are "legally separated" what they really mean is that they have entered into a legally binding agreement, sometimes called either a "Separation Agreement", "Divorce Agreement", "Custody, Access and Property Agreement", or "Minutes of Settlement".
These types of agreements are usually prepared by lawyers, signed in front of witnesses, and legal advice is given to both parties signing the agreement. These types of agreements will, in most cases, be recognized by the courts as a legal contract.
These are two different names for contracts entered into between parties who are separating or divorcing. The only difference between the two is the name. Often, if a court action is started, the contract will be called a Minutes of Settlement.
A separation agreement is a written contract between you and your former spouse / partner that usually deals with the following issues:
- Where your children will live and what time periods they will spend with the other parent
- How much child support will be paid
- How much spousal support will be paid
- How property is divided
It is possible for you and your former spouse / partner to write up an agreement yourselves. Templates are available on the internet or at bookstores and stationary stores.
However, a lawyer can make sure you understand all of your legal rights and obligations before you sign a separation agreement, and can make sure all of the issues are covered in your agreement. In addition, if you want your agreement to be legal and binding as far as your property division is concerned, you must both sign the agreement before separate lawyers.
Yes, there are three courses put on by Family Justice Services, Parenting After Separation (PAS), Parenting After Separation for High Conflict Families (PASHC) and Focus on Communication in Separation (FOCIS).
There are other courses put on by non-profit agencies in the community. Some of these agencies are listed on our links page.
If you lived with the other parent, and want to apply in the Court of Queen's Bench for divorce, custody, access, parenting, guardianship or child support, you will, in most cases, have to attend the Parenting After Separation course.
If your court application is in the Provincial Court, the judge may order you to go to the course.
When you complete the course, you are given a Certificate. You file this with the court as proof of your attendance.
An annulment is a court order that says that your marriage did not exist or was not valid. As such, it is only available in certain, limited cases. Some examples:
- If your spouse was already married at the time they married you. - If you married the person only because someone threatened your physical safety - If you were so impaired by drugs or alcohol that you did not understand that you were going through a marriage ceremony - If you thought you were marrying one person, but it was actually another person in disguise - If the person you married is unable to consummate the marriage - If you were under the age of 18 when you married, you did not have your parents consent, and you did not consummate the marriage.
Some churches will grant an annulment. This is different from a legal annulment.
A divorce is a court order that ends a valid marriage.
If you either you or your former spouse has been ordinarily resident within the Province of Alberta for at least one year, you can file for divorce in Alberta. No specific immigration status is necessary.
No. If your divorce order includes custody, access or support, then those parts of the divorce can be registered and enforced here. But, there is no need to register an out of country divorce with the Alberta court.
In Alberta, the courts prefer to include custody, access (parenting) and support clauses in with the Divorce Judgment. There is a benefit to you in having these all together, in that you have all of your important court orders on one court file.
It is possible to apply to the court to "sever the corollary relief" from the Divorce Judgment – that is, to allow you to go ahead with the divorce by itself, without including custody, access and support. You must have a good reason for asking to sever corollary relief.
In every case where there are children, the judge granting the divorce must be satisfied that the child support is reasonable. This is an obligation put on the judge by the Divorce Act. If the judge is not satisfied that the child support is reasonable, they will not grant the divorce.
There are 3 grounds that you can use to file for divorce in Canada. They are:
- One year separation
- Adultery (by the other party)
- Mental or physical cruelty (by the other party)
If you are using one year separation as your ground, there are two things to remember. First, it is possible to reconcile for up to 90 days during that one year period. Second, you can start the divorce action before the one year is up, so long as you wait until the year is up to file the documents necessary to finalize the divorce and apply for the divorce judgment.
You do not need any special document to prove that you are separated. When you apply for your divorce judgment, you will sign an Affidavit (a sworn statement) that you were, in fact, living separate and apart since your separation date.
Yes, you can be separated from someone and live in the same house. If you are making applications to the Court, you will need to provide evidence to the Court about your living situation and the judge will decide whether or not you and your spouse are truly separated. The judge will look at all of the circumstances to make this decision, for example, whether you eat meals together, whether you cook and clean for each other, whether you share a bedroom, whether you continue to attend family functions together etc.
Usually, the person who committed adultery will sign an Affidavit (a sworn statement) saying that they had sexual intercourse with a person other than you during the time that you were married. That is sufficient proof for the court.
If your spouse is not willing to sign an Affidavit, then you should talk to a lawyer about your options.
The fee charged by the court to start a divorce action is $210.
Lawyers and paralegals often have flat fees that they will charge for an "uncontested divorce". This covers all of the paperwork needed to complete the divorce, provided that your former spouse will agree with the custody, access (parenting) and support that you propose.
If you and your former spouse cannot agree, then you will pay for the lawyer's time to negotiate a settlement for you or to make court applications to have these matters dealt with by the judge.
If the divorce is uncontested – that is, there is no argument about custody, access (parenting) or support – completing the paperwork with the court usually takes a minimum of 3 to 6 months. Note, though, that if you are using one year separation as your grounds for divorce, then the divorce judgment cannot be granted before the year is up.
If you and your former spouse cannot agree on custody, access (parenting) or support, then the divorce becomes contested, and can take much longer.
No. If you were considered Adult Interdependent Partners, you can end the partnership by agreement, or by living apart for one year. You do not need to apply to the court. More information on Adult Interdependent Relationships.
This is an office that is part of Justice Canada that tracks all of the divorces in Canada. When you start a divorce action, the Central Divorce Registry is notified, and they are also notified when the judgment is granted.
If you start a second divorce action (for the same marriage), then the Central Divorce Registry will let the Alberta court know that. You must discontinue one of the divorce actions before you can get a divorce judgment on the other one.
You will need to provide your Court file number to the Clerks office in the city where you obtained your divorce. If you do not have the number, you will be required to pay a $10 search fee (to obtain the number) before asking for the Certificate. If you were divorced before 1985 you will not get a Divorce Certificate, but rather a Decree Absolute.
You can get one copy of your Divorce Certificate for free, but there may be a fee for additional copies. There will be a fee for a certified copy of your Decree Absolute.
If you need your Divorce Certificate so that you can re-marry, and if you are planning to get married outside of Canada, make sure to tell the Clerk. They will provide you with the correct certificate, and can give you information about what other steps you need to take to have your certificate accepted outside Canada.
Mediation is a voluntary process. Parents meet with a mediator who remains neutral to them both and helps them communicate, develop options, clarify issues and focus on the future. The mediator does not make decisions, but assists parents in reaching an agreement. Most parents who try mediation are able to reach an agreement.
At the end of the mediation, the mediator will provide you with a report that sets out what the two of you have agreed to. The mediation report is NOT enforceable.
Mediation can help in several ways:
- Usually, it is cheaper than paying lawyers to negotiate for you.
-Going through the process of mediation will give you communication skills that will help the two of you to discuss issues that will come up in the future.
-Mediation may help you understand each other better, and allow you to avoid future problems.
-Mediation may allow you to reach the most appropriate decision for your own circumstances, as the two of you know your children's needs better than a judge would.
-It can be quicker than making court applications.
-Even if you are not able to agree on everything in mediation, the mediator can help you reach a short term agreement, so that you have something in place while you wait for court dates, or they can help you narrow the issues, so when you go to court, you are better able to tell the judge what you need them to decide.
No. You can take the agreement to a lawyer to use to prepare a formal agreement for you. Or, you can make a court application to have the mediation agreement turned into a court order.
It varies, depending on the two of you. However, in most cases, you should be able to reach an agreement in 3 or 4 sessions with the mediator.
If you qualify for mediation services at Family Justice Services, there is no charge.
If you use a private mediator, the fees vary.
You can find the names of various private family mediators in your local yellow pages, under "Mediation Services". You can find a list of registered family mediators in the province by calling the Alberta Family Mediation Society at 1-877-233-0143 or contacting them through their website. You can also contact the Alberta Arbitration and Mediation Society at 1-800-232-7214, or through their website. For information about whether or not you may be eligible for free family mediation, contact Family Justice Services.
In an arbitration, the two of you discuss your case with a person who will make a decision for you. Often, the arbitrator will work with the two of you first, to see if you can reach an agreement yourselves. If not, though, the arbitrator will give a written decision, and that decision can be enforced as if it were a court order.
In JDR, a judge meets with parents and their lawyers to discuss any matters that are still in dispute. The judge may try to direct parents toward agreement. However, the judge cannot make a decision and insist on a resolution. If a settlement is reached, the judge is able to grant an order right there and then that makes the decision legal, with paperwork to follow.
Similar to mediation, the collaborative family law process is about cooperation instead of confrontation. Collaborative lawyers work with your former partner and you to understand what each of you wants, help you problem solve when you want different things, and reach an agreement that you both accept and think is basically fair. The two of you are responsible for gathering information and coming to solutions, but you each do it with the help of lawyers who work with you separately and together.
In collaborative family law:- Parents and collaborative lawyers work together as members of the settlement team rather than working against each other as "opposing parties."
Collaborative lawyers agree not to go to court throughout the process. If parents choose to go to court, they will have to begin the process over with different lawyers.
A parent coordinator is a professional (e.g. a psychologist or social worker) hired by the parties to help them reach agreements on day to day parenting issues. If the parents cannot agree, the parenting coordinator will decide.
While some issues, such as applications under the Family Law Act, may be started in either Court, there are other issues that are generally dealt with only in the Provincial Court (such as child protection issues) or in the Court of Queen's Bench (such as divorces and division of matrimonial property). See the question "Which Court Should I Use" below.
An Order made by a Provincial Court judge has the same effect as an Order made by the Court of Queen's Bench. If you do not follow a court order, the consequences are the same, no matter which court it was granted in.
If both the Court of Queen's Bench and The Provincial Court make orders dealing with the same issue, then the Queen's Bench order will take precedence. If you appeal a Provincial Court Order, the appeal is filed in the Court of Queen's Bench. An appeal from the Court of Queen's Bench is filed in the Court of Appeal.
You refer to a Judge of the Provincial Court as "Your Honour" but you must refer to a Justice of the Court of Queen's Bench as "My Lord" or "My Lady". In either court, it is acceptable to call the judge "Sir" or "Madam".
If you want to want to make an application for parenting, contact, child support or spousal support and you (or your former spouse / partner) have not already started an action in one court, then you may make your application in either court. However, there are certain things the Provincial Court cannot deal with. If you want an order for the following things then you have to make your application in the Court of Queen's Bench and a filing fee applies:
- Division of Matrimonial Property
- Actions relating to property when the parties are not married
- Exclusive Possession of a home
- Exclusive Use of household goods
- Declaration of Parentage
- Declaration of Irreconcilability
- Cancellation of Registration at Land Titles
- Conditions on support orders such as trusts, charges against property, injunctions etc.
If you have already filed for divorce or you have already got an order from the Court of Queen's Bench, then you must make your application in the Court of Queen's Bench. Because the Court of Queen's Bench is a federal court, it can deal with any family law matter.
Most of the time, yes. If there is already an open court file for your matter, you should file your application where the court file is. It may be possible to transfer the court file, either permanently or temporarily, so that you can make your application in Lethbridge but it will depend on why you want to move the file and what you will be applying for. For example, if you want to change custody or parenting and the child still lives in Edmonton, the Court will probably not allow you to transfer the file.
If you want to move a Provincial Court file, speak to the clerk's office at your nearest courthouse location. If you want to move a Court of Queen's Bench file, then you can find the forms for that application here.
In some cases, your file is in Edmonton only because Maintenance Enforcement filed your court order there. In those cases, it is possible to file your court application where you live, rather than in Edmonton. Speak to Family Justice Services to find out if this applies to you.
It may be possible to file documents in one court location to be forwarded to another court location in Provincial Court only. Call the clerk's office at the courthouse location near you.
If your case is in Queen's Bench want to cancel your court date, you must contact the Clerk's office at the courthouse where you filed your documents and ask them to take your application "off the list". They will probably ask you to make your request in writing by fax or by letter. You should then call the other party and let them know.
If your case is in Provincial Court, you must first obtain the consent of the other party or parties. Then, write a letter to the clerk asking that your application be withdrawn and saying that you have talked to the other party (parties) and they have agreed. Deliver the letter to the clerk. If the other parties do not agree, then go to court on your court date, and tell the judge that you want to withdraw your application.
A court date can only be adjourned (put off to another day) with consent of both parties or if directed by a judge. You must contact the applicant or their lawyer and see if they are willing to change the date. If not, you will either have to come on the court date, or have someone appear for you (a lawyer or a friend) to ask for an adjournment.
If the matter is in Provincial Court and the Applicant and the Respondent agree to change the date, both parties can contact Family Justice Services or the Provincial Court clerks, to adjourn the application by consent.
If the matter is in Queen's Bench and the Applicant and the Respondent agree to change the date, the Applicant can contact the Justice Chambers clerk to adjourn the application by consent.
Remember when you are asking for an adjournment, that you must make this court case your first priority. The other party and the judge will not likely be willing to adjourn it for more than a couple weeks.
When you want to make a court application that may affect someone else's life in some way, you must give them notice of that. To do that, you serve them – i.e. hand them the forms that you have filed to start your court application.
If it is difficult or impossible to personally serve them with the forms, the court may allow you to serve in some other way – e.g. to post them on their door, or serve them on some other person who is in contact with your former spouse / partner. This is called Substitutional Service.
In rare cases, the court will dispense with service – that is, allow you to go ahead without serving your former spouse / partner. However, you must have made every effort to find them first, and there must be no way of substitutionally serving them.
The short answer is yes. If you do not follow a court order, you are said to be in breach of the order. The other party can take you back to court to ask that you be held in contempt of court and to have you punished for not following the order.
If you believe you have good reason not to follow the court order, then you should apply to the court to change the order or appeal it to a higher court.
When you apply for or change a court order, you change the rights and obligations of the other party. You have to give that other party notice of what you are asking the court to do so that they have the opportunity to agree with or to make arguments against your application.
If your case is an emergency – e.g. if you or your child will be in physical danger if you serve the documents – then you may be able to get an order that will be in place for the short term, while you arrange to serve the other party.
In rare cases where you cannot find the other party to serve them, the court may allow you to go ahead with your application without serving them.
If you are face to face with the person, and they refuse to extend their hand to take the papers, you can drop them on the ground in front of the person and they are considered to be personally served.
If the person is refusing to open their door, then you cannot drop the papers or leave them at the door in any manner. In that case, you may want to try having someone else serve the papers, including a process server.
If the person will not cooperate, you can come to court to ask for a Substitutional Service Order, which is an Order allowing you to serve in some other manner, for example, posting the papers to their door.
"Recorded mail" is a term in the Rules of Court that refers to a kind of delivery where the person receiving the envelope has to sign for it. The Post Office calls this registered mail. You may also be able to use a courier company, so long as they have the person sign for the delivery.
In either case, be sure to ask how you can get a copy of the signature of the person receiving the envelope. You will need this to prove that you have served the right person. There may be an extra charge to get the copy of the signature.
NOTE: Most family applications cannot be served by Recorded Mail. Do not serve this way unless you are instructed that it is alright.
If no one picked up the mail, then you have not served. If you live within reasonable driving distance of the other party, you should personally serve them. If not, you may want to ask the court for an Order for Substitutional Service to allow you to serve in some other way.
If someone else picked up the mail, and you believe that the documents would have been turned over to the other party, then you may be able to ask the court for an Order Validating Service. You should explain in an Affidavit why you think the documents were received by the other party.
NOTE: Most family applications cannot be served by Recorded Mail. Do not serve this way unless you are instructed that it is alright.
Look in your yellow pages, under "Process Server" or go to www.canada411.ca and search "Process Server" as a keyword under "Find a Business".
An affidavit is a statement that is sworn under oath and has the same effect as evidence given in court.
Lying while under oath is called perjury and is a criminal offence.
Lying on your Affidavit or in court will have consequences in your family case as well. If the judge finds that you have lied with respect to one thing, they are less likely to believe you when it comes to other things. So, even if you are telling the truth about another issue, the judge may decide not to believe you.
For those reasons, it is important to make sure that the information you give the court is the complete truth.
Section 3 – Section 3 refers to the amount of child support that is required to be paid under the Child Support guideline Tables according to the income of the person required to pay support.
Section 7 – This probably refers to the special expense section of the Child Support Guidelines. The order usually either says that the payor will pay a certain amount towards section 7 expenses, or that they will pay a certain percentage of section 7 expenses. For more information, go here.
Section 112 – This probably refers to the section of the Child Youth and Family Enhancement Act that allows the court to appoint a lawyer for the child. The lawyer is generally paid for through Legal Aid. You can speak to Legal Aid to find out if you will be asked to contribute to the legal fees.
Rule 9.4(2)(b) – A lawyer may ask or the judge may say "Rule 9.4(2)(b) is invoked." They mean that the lawyer for the other party can prepare and submit an order to the court for signature without having you review the order first.
If you were the applicant, then your application was likely dismissed. In that case, you will need to start over.
If you were the respondent, you may be able to apply to the court to set aside the decision that was made.
In either case, contact Family Justice Services / Family Law Information Centre for more information.
CaseFlow is a service offered by Family Justice Services that takes place in the Provincial Court, Family in Edmonton and Calgary. If you are making an application for parenting, guardianship or contact, your first court date will likely be scheduled to take place in the CaseFlow office rather than court. The CaseFlow coordinator can help resolve matters without going before a judge. For example:
-They can adjourn the application to another day, for example, if one of you wants to get a lawyer.
- They will talk to you about mediation, and adjourn your court date if the two of you want to go to mediation.
- If the other party does not show up, they will make sure that you served them properly.
- If the two of you have reached an agreement, they will help you do a draft Consent Order which will be sent to the judge for review and signature.
If the two of you can't settle your issues in CaseFlow or through mediation, then you will be put into court to have a judge decide.
Sometimes, cases have to go into court, even though everyone agrees. The CaseFlow Coordinator will let you know if that is needed in your case.
This is the formal process in a Queen's Bench action in which one party is asked questions by the other (or their lawyer) and the questions and answers are taken down by a court reporter, so that a transcript can be prepared. Or, the questions and answers can be done in writing, with the answers sworn before a Commissioner for Oaths.
There are two kinds of Questioning
1. Questioning generally (formerly called "Discovery") – this is usually done once in a court action and covers all of the issues in the action (parenting, support and property division). The purpose is to allow both parties to discover all of the evidence that the other party has or might bring to trial. The transcript may be used at trial by the party who has done the questioning.
2. Questioning on an Affidavit or Statement (formerly called "Cross Examination on an Affidavit") – this is done when an application is made in Chambers. A party can ask that the application be adjourned so that they can do a Questioning on the Affidavit. They then ask questions about the Affidavit and about the issues in that application. The transcript of the Questioning must be filed with the court, unless both parties agree otherwise.
Questioning is not done at the court house. The parties will hire a private court reporter and the questioning will take place either in the court reporter's office or in the lawyer's office. The court reporter charges a fee for coming to the questioning, and for the transcripts.
See What is Questioning – above.
See What is Questioning – above.
Case Management, in family cases, refers to one Judge taking control of a file so that all applications are heard by that judge. Case Management usually occurs when parties make many applications to the court.
When two parties come to court, usually one person is successful and the other is not. The successful party may ask the judge to order that the other party pay "costs".
Costs are intended to compensate the winning party for their legal fees and other expenses for having to come to court. The Rules of Court sets out a schedule for calculating the amount of costs when someone has a lawyer. However, the amounts in the schedule are often lower than the actual lawyer's fees.
Even if the successful party does not have a lawyer, the court may order costs, if the person had out of pocket expenses, for example, lost wages or travel expenses.
In family law cases, the judge may find that there is "mixed success" – that is both parties were partially successful and partially unsuccessful. In that case, the judge may not order costs.
Costs can be ordered even if the parties never go to court. For example, in a Statement of Claim for Divorce, the Plaintiff may ask for costs. If the Defendant does not object, the divorce will be granted as a Desk Divorce (without a court hearing) and the Divorce Judgment may include a paragraph ordering the Defendant to pay the Plaintiff's costs. This would cover the cost of preparing the documents, filing fees and service costs.
If one party has made a formal offer to settle, and the other party does not accept it, and if the judge decides in favour of the first party in court, then the amount of costs can be increased.
No. It is very improper to speak to a judge privately about your case. In an emergency, you may be able to make an application in open court without first serving the other party. You would need to first file the correct court forms, and your court hearing is recorded.
In every other case, though, you must make a formal application and serve the other party before you can speak to the judge.
No. It is very improper to write a letter to the judge.
If you have concerns about what the other party is doing, and you believe that the remedy is to change the terms of your court order, then you should make a formal court application.
If you have concerns about what the other party is doing, but you do not want to change your court order, then there is nothing that a judge can do. You may want to think about mediation as a way of discussing those issues with your former spouse / partner.
For information on how to change a child's name, contact the Alberta Registries, Vital Statistics at 310-0000, (780) 427-7013 or at http://www.servicealberta.gov.ab.ca/797.cfm.
You need to get the other parent's consent to change a child's name if the other parent is listed on the child's birth certificate. If the other parent will not consent then you can make an application to the court, on notice to the other parent, to dispense with their consent.
However, if you have a court order saying that you are the Sole Guardian of the child or have signed an Affidavit saying you are the sole guardian, then you do not need the other parent's consent. Include a copy of that order or Affidavit with your change of name application.
You are allowed to represent yourself in court.
Before deciding to represent yourself, you should ask yourself:
- Am I able to read instructions and do the necessary paperwork?
- Am I willing to put the time in to do the necessary paperwork?
- Can I take time off during the day to come to the courthouse to file paperwork and appear in court?
- Am I willing to learn the court processes and etiquette?
- Am I going to be comfortable dealing with my former spouse / partner – arranging to serve court forms, meeting to discuss settlement and meeting in court?
- Can I explain what it is that I want and why in a way that the judge will understand?
If you are concerned that you may not do a good job with the paperwork or speaking in court, then you should think about hiring a lawyer.
Court staff are not allowed to give legal advice. If they are telling you to talk to a lawyer, it is because the question you are asking is legal advice. They are allowed to give you legal information (e.g. tell you what is in a Statute or what court form to use), but they cannot tell you how to word your court forms, what your chances are or which path to follow, if there is more than one way to accomplish the result you want.
Information about hiring a lawyer is in the Parenting After Separation Manual.
Same sex partners / spouses have the same rights as opposite sex partners / spouses, whether it is under the Family Law Act in Alberta or the Divorce Act, across the country.
You are never considered married, unless you actually go through a legally recognized marriage ceremony. However, by living together, you may become Adult Interdependent Partners and in that case, you will be treated the same as if you are married in some cases. To find out more, go here.
If you are representing yourself in court, you are responsible for filling out your own court forms. Staff at Family Justice Services can explain what is needed in some spots on the forms, if you do not understand, but cannot fill them out for you.
If you have been given forms to fill out, you may want to contact a paralegal company or a secretarial service for help in filling them out.
If English is not your first language, you may want to contact the immigrant services in your community.
Court staff are often Commissioners for Oaths and can commission Alberta court documents for self represented parties.
Alberta Registry offices and banks often have Commissioners for Oaths. You may be charged a fee.
Lawyer's offices will have Commissioners for Oaths on staff. You may be charged a fee.
If you need a Notary Public to complete an Interjurisdictional Support Orders application, contact Family Justice Services.
If you need a Notary Public for any other reason, contact a lawyer or search "Alberta Notary Public" on the internet. You will be charged a fee.
Contact the Law Society of Alberta.
First, decide whether your complaint is about the decision made, or about the judge's conduct. If you are unhappy with the decision, then you may want to consider an appeal.
If you believe the judge's conduct was inappropriate, you may consider a complaint. If the complaint is about a judge in The Provincial Court, you can write a letter to the Chief Judge or the Assistant Chief Judge of the Court in which the judge sits. The names and addresses are in the Court Calendar.
If the complaint is about a justice in the Court of Queen's Bench, you can contact the Canadian Judicial Council.
Contact an Alberta Registry office (where you get a drivers license).
In Alberta, people who conduct non-religious marriage ceremonies are called "Marriage Commissioners" or "Marriage Officiates". You can find a list of marriage commissioners here.