Calgary Family Law 101: How to file your application
Written by Calgary Family Lawyer Mat Wirove
Generally, when going through a separation or divorce going to family law court should be your last resort. However, some disagreements, for whatever reason, cannot be resolved without some intervention. We believe that it is best to attempt family law mediation, or some other alternative dispute resolution process, but if you and your spouse cannot to mediation then you might need the court’s assistance. You will then have to make an application to have a judge resolve the issue for you. If you are representing yourself you may want to consider unbundled legal services or legal coaching.
The following steps are how you apply:
STEP 1: Choose the right forms
Depending on your situation, a party making an application has to determine if they need to apply under the Family Law Act, or the Divorce Act. An application is made under the Divorce Act for:
- Married couples
- Exclusive possession of a Home
- Custody of a children
- Child support
- Spousal support
- Contact with children
- Other matters found in the Divorce Act
You can use the Family Law Act for:
- Married or unmarried couples
- Parenting of children
- Guardianship of children
- Child support
- Contact with children
- Other matters found in the Family Law Act
You can apply to either the Provincial Court or the Alberta Court of Queen’s Bench. However, issues regarding family property must be made to the Court of Queen’s Bench. Moreover, if previous pleadings have been filed in your family law case then you must continue in the same level of Court. Married couples generally want to apply under the Divorce Act, in Queen’s Bench as that level of Court has jurisdiction and can ultimately finalize a divorce.
If applying under the Family Law Act, you will need a form called “Claim – Family Law Act”, and a Statement for each Order you are applying for. For an application under the Divorce Act, you will need a “Family Application” and a supporting Affidavit. The Application forms outline what you are asking for and why. The Affidavits and Statements outline your evidence in support of the application including any documents that you want to include as exhibits. The Statements and Affidavits will also need to be sworn with a Commissioner for Oaths or Notary Public.
All of the required family law and divorce forms can be found on the Alberta Courts website: www.albertacourts.ca
Step 2: File your materials with a court clerk
After your have your family law or divorce Application, Affidavit and/or Statements prepared, you will need to attend at the Court to have them filed. You will need with you:
- The original Application and Affidavit/Statements;
- A copy for you;
- A copy for each respondent; and
- An extra copy for the Judge or Justice
You will select a court date with the help of the family law court clerk and if making a claim under the Family Law Act, complete the “Notice to Respondent” on the Claim. The clerk will stamp each copy, and keep the originals.
Step 3: Serve your documents
The Respondent to your family law claim must be provided notice of the application so that they can properly respond. You give notice by serving directly to the Respondent a copy of the filed materials, including the Application, and Affidavit or Statements. You should use a friend, or hire a process server to serve the Respondent.
If you do not know where the Respondent is you will have to try to find them. If you are unable to personally serve the Respondent, you can ask the Court for permission for a Substitutional Service Order. This will require another trip to the Courts to speak to the Justice.
Once you are able to serve the Respondent you will need an “Affidavit of Service”. The Affidavit of Service will explain who delivered the documents; say the date the documents were delivered; and the address of where the Respondent was served. This must be filed with the Court clerks prior to your court date, and it is highly recommended you bring a copy with you to divorce court.
Step 4: Attend Court
Now that you have filled out, filed, and served the family law Application documents on the other party, the only step remaining is to attend Court on the day that you have chosen. Be sure to bring copies of all your documents, including your Affidavit of Service.
Navigating family law and the divorce courts can be very complicated and overwhelming especially if you are a self-represented. The Lawyers at Crossroads Law offer unbundled legal services and legal coaching to help you in the background if you wish to represent yourself. Unbundled legal services and legal coaching are typically less expensive than a regular legal retainer and you choose how much legal help you need.