Exchange of Legal Documents
If negotiation is not appropriate or possible in the circumstances, then we may recommend starting legal proceedings. Legal documents will be prepared, submitting all unresolved issues to the court for its decision on your behalf.
The documents will be filed in the court and served on your spouse. Your spouse will then have an opportunity to file materials in response. Sometimes we will file materials responding to his or her response. All of these documents are called the “pleadings”.
Because it takes a fair amount of time to have a matter decided at trial, we may recommend that you bring an “interim motion” when you need immediate help. Common examples are when you require maintenance for yourself and/or children, custody or restraining order, or exclusive occupancy of the family home. Evidence is presented in a sworn Affidavit to a Judge who makes a decision based on the Affidavits after hearing arguments from both lawyers. Sometimes before the Judge hears the motion, we will recommend that we cross-examine your spouse on his or her Affidavit. This is advisable if it conflicts greatly with your evidence. Your spouse’s lawyer may exercise his or her right to cross-examine you on your Affidavit as well.
You and your spouse will exchange copies of documents relevant to the case by each filing an “Affidavit as to documents”. An “Examination for Discovery” will generally then be scheduled and you will be examined under oath before a court reporter by your spouse’s lawyer. You will be briefed by us about the types of questions that might be asked prior to the discovery being held. We will have an opportunity to examine your spouse as well.
Referral to Mediation
At any point in this process, you and your spouse may be referred to mediation to resolve some or all of the outstanding issues. In mediation, you meet in face to face discussions with your spouse. With the assistance of a neutral mediator, you each state your point of view. The mediation helps you to clarify the issues and negotiate to reach a mutually acceptable agreement.
When separating parents have tried and failed to reach an agreement on the care of their children, they may choose to proceed to court. In some instances, the Judge may order a psychological assessment of the parents and the children. An assessment is a process in which a psychologist spends time with you, your spouse and your children. They then write a report which will help the Judge make a decision that is good for your family. The assessment helps determine the best possible plan for the care of the children under the circumstances. The assessor will generally meet with the parents separately to examine the concerns and parenting plans of each party and will generally spend some time with each parent with the children.
Interviews are often conducted with others, such as family members, teachers, daycare workers, etc. A report is written and submitted to the court and copies are provided to each party’s lawyer. At this point, you may choose to resolve the matter by agreement using the report as a guideline. If the case goes to trial, the report may be submitted to the court as evidence. While the report is an important part of all of the evidence that the court will consider in a trial, it is not decisive. The final decision rests with the Judge who will hear from the parents and witnesses called on their behalf.
Before a case goes to trial, the court will require at least one pre-trial hearing before a Judge in order to ascertain if any of the issues are capable of settlement and whether the case is fully ready for trial. You will not be required to attend at such a hearing which generally takes about 30 minutes.
If there are issues that have still not been settled at this stage then the matter will proceed to a trial. A Judge will hear evidence from all witnesses and make a decision that is binding on the parties. It generally takes over two years to reach the point where there is a trial. The trial itself can take one day, several days, or even weeks depending on how complicated the issues are and how many witnesses will be called.
Almost any Order or Judgment can be appealed to the Court of Appeal if it contains some serious error in fact or law. There is a provision for a further appeal to the Supreme Court of Canada. This is rarely done in family law cases.
Court services, resources, forms, judgments, and contact information
Alberta Justice & Solicitor General > Families
Resources and programs provided by Alberta Justice, including Family Justice Services, the Maintenance Enforcement Program and the Child Support Recalculation Program
Law Society of Alberta
Information for the public about finding and working with a lawyer, legal professional regulation and protecting the public interest
Collaborative Divorce Alberta Association
Information and resources about Collaborative Law in Alberta
Justice Laws Website (Federal Legislation)
Online source of the consolidated Acts and regulations of Canada
Alberta Queen’s Printer (Provincial Legislation)
The official source of Alberta government laws and publications
A free database of court judgments, tribunal decisions, statutes and regulations from all Canadian jurisdictions