Proposals - Other
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.
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 ...
93% in favour out of 15 votes