As we enter the third month of the COVID-19 pandemic (“Pandemic”), both the Provincial Court of Alberta and the Court of King’s Bench (“Alberta Courts”) have effectively been closed since March 20, 2020 for all but “emergency and urgent matters”. However, this week marks the Provincial Court’s commencement of Part One of the COVID-19 Staged Resumption of Court Operations, which will allow the court to start hearing certain additional civil, criminal and family matters (in addition to hearing “emergency and urgent” matters).

Although the Court of King’s Bench has yet to commence its staged resumption of court operations, pursuant to Amended Master Order #3, the court remains open during the Pandemic for emergency and urgent family matters¹Amended Master Order #3 Relating to Court’s Response to the COVID-19 Virus, Court of King’s Bench of Alberta, online: https://www.albertacourts.ca/docs/default-source/qb/covid/amended-master-order-3—covid-19.pdf?sfvrsn=e7029d80_6., including:

• Orders where there is a risk of violence or immediate harm to one of the parties or a child;
• Orders where there is a risk of removal of a child from the jurisdiction; and
• Emergency Protection Order reviews.

LEGAL OPTIONS FOR SEPARATING AND DIVORCING PARTIES DURING THE PANDEMIC

Most separation and divorce matters would not generally be considered to be emergency or urgent matters during the Pandemic (other than, for example, where there is a risk of violence or immediate harm to a party, or a risk of removal of a child from the jurisdiction). Consequently, the majority of separation and divorce matters have not advanced in litigation since hearings at the courts were suspended at the end of March.

For a legal separation between married spouses in Alberta, parties do not need to go to court for any official “separation” proceeding. However, we recommend that separating partiescontact an experienced family law lawyer for legal advice and to discuss their rights and obligations during separation. A number of legal options remain available to separating and divorcing parties despite the suspension of court hearings and procedures, including entering into a legal Separation Agreement, and participating in alternative dispute resolution proceedings such as mediation and arbitration.

SEPARATION AGREEMENT

We recommend that parties who intend to legally separate, or even those who are already separated, retain legal counsel and enter into a Separation Agreement. A Separation Agreement can be drafted by either party’s lawyer and will deal with important issues specific to the individual particulars of the parties and their children, such as child custody and parenting, child support, partner or spousal support, and property division.

Retaining an experienced lawyer is invaluable in this situation, to help draft an agreement tailored to address individual circumstances. If one or both of the parties’ circumstances have materially changed as a result of the Pandemic, experienced counsel can also assist in working with the other party’s counsel to amend the Separation Agreement to reflect this change in circumstances and/or to advise parties on their obligations under the agreement.

Our team of Domestic and Matrimonial lawyers continue to work and consult with clients remotely during the Pandemic, and the Pandemic has not interrupted our work on such issues as drafting and finalizing domestic and matrimonial agreements.

Please note, if a separating couple is not married in Alberta, and currently in an Adult Interdependent Relationship and/or has entered into an Adult Interdependent Partner Agreement, we also highly recommend contacting a lawyer to assist in the separation process. Recent changes to Alberta’s Adult Interdependent Relationships Act²Adult Interdependent Relationships Act, SA 2002, c A-4.5, which you can read about in a blog post here, have extended Alberta’s property division rules to unmarried couples.

Notwithstanding the current Pandemic and suspension of court hearings, it is best to obtain legal advice as early in the separation and divorce process as possible, in order to best protect each parties’ legal rights.

MEDIATIONS AND ARBITRATIONS

Private mediations and arbitrations for domestic and matrimonial issues have generally continued during the Pandemic, on a remote basis via video conference or by phone conference. These remote proceedings are a practical and efficient way for non-urgent and non-emergency family matters to proceed despite the current suspension of court hearings. Our Domestic and Matrimonial lawyers have attended remote mediation and arbitration proceedings during the Pandemic through video conferencing or telephone conferencing to continue to assist  our clients in an uninterrupted manner, and we will continue to utilize alternative means of dispute resolution in order to work with our clients during the Pandemic to resolve family matters.

COURT PROCEEDINGS

For certain matters (such as divorce) that are neither considered to be emergency or urgent matters, nor within the jurisdiction of Provincial Court matters being resumed, we expect the intake of new matters to start sometime in the next few months once the Court of King’s Bench commences its staged resumption of court activities. However, we anticipate there will be a temporary influx of new family matters at that time, and recommend that parties consider using alternative dispute resolution such as mediation and arbitration where possible.

Note that the Alberta Courts continue to operate to assist parties experiencing emergency family matters, such as emergency protection orders, and to obtain an order to prevent a spouse from removing children from the jurisdiction. Our lawyers can assist clients in an emergency family matter such as obtaining an emergency protection order.

Carscallen LLP’s Domestic and Matrimonial Law Expertise

• 1
  Amended Master Order #3 Relating to Court’s Response to the COVID-19 Virus, Court of King’s Bench of Alberta, online: https://www.albertacourts.ca/docs/default-source/qb/covid/amended-master-order-3—covid-19.pdf?sfvrsn=e7029d80_6.
• 2
  Adult Interdependent Relationships Act, SA 2002, c A-4.5