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What changes should be made to family law?

These proposals let family law lawyers discuss and vote on what changes they think should be made to the law or court procedures. The results can be viewed and shared with legislators and the Courts. The proposals put forth are written by member lawyers, and do not necessarily reflect the views of this website or its administrators. You can view more proposals or make a proposal yourself.


Proposal: Correct Clerk's interpretation of Section 7 Divorce Act; Rules of Court
Other - Aug 16th

93% in favour out of 14 votes

Anonymous
(Alberta. Joined 2018)

The Divorce Act is federal legislation and property issues fall under provincial legislation. The constitution dealt with the division of powers.

The obligations under Section 7 of the Divorce Act have been added to the Claim for Divorce. During the introduction to the changes sponsored by the federal department, it was stated that section 7 was added to the Act for the benefit of reducing conflict over children. There was no indication that Section 7 was intended to apply to any other claim under the Divorce Act.

The Statement by Plaintiff refers to "parenting time", "protecting children", "resolving disputes through family dispute resolution processes", "providing current information required under the Act" and "complying with any Order under the Act". They are all statements that refer to parenting of children which falls under the Divorce Act.

The Clerks insist that every Claim for divorce, even where there are no children, include the Statement of Plaintiff signed by the clients. They will not accept a Claim for filing without that Statement being signed.

There is no jurisdiction to apply the federal Act to the division of matrimonial property which falls under provincial jurisdiction.

Even if they are applying Section 7 to the overall granting of a Divorce, it would be redundant to require up to date information as it relates to the granting of a Divorce, or to comply with the Order for Divorce. No divorce can be granted if the Plaintiff does not provide the required Claim information. In an uncontested divorce, there will be no Order to comply with. The parties receive a Divorce Judgment.

The second issue that arises from the overstepping of the feds is in the Rejection Notice that is used by the Clerks. The Alberta Rules of Court state that only originating processes must be served by personal service. The Rejection Notice used by the Clerks states that if any service other than personal service requires a supplemental Affidavit to be filed to give an explanation why personal service was not used. it seems to imply a requirement to use personal service although that is not in compliance with the provincial Rules of Court.

There seems to be an overstepping of the federal legislation into provincial jurisdiction.

Perhaps that is a consequence of IT personnel having more say in the legal system than lawyers.

I post anonymously to avoid any negative feedback. We all know how important it is to maintain a good relationship with the Court staff to get anything filed.


0 34 days ago

Anonymous
(Alberta. Joined 2018)

"We all know how important it is to maintain a good relationship with the Court staff to get anything filed."

I don't mean to get off topic here, but I don't think that's a fair comment. I've been rejected countless times by various clerks, and sometimes that upsets me greatly, but I still wouldn't agree that they play favorites or act vengefully.


0 33 days ago

Reena Herian
Accord Family Law (Alberta. Joined 2020)

Separate documents e.g. Statement of Claim for Divorce, Statement of Claim for Divorce with Children, etc. would and should solve this easily.

0 32 days ago

Anonymous
(Alberta. Joined 2018)

I tried submitting a claim with 1 and 2 of the statement crossed out because there were no children, but it was rejected.

0 31 days ago

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