The conventional meaning of a “defendant” is someone who’s been sued in a court action.
A Defendant in a Divorce case is simply an individual who receives notice that his or her spouse has filed a divorce action in court.
The Plaintiff, on the other hand, is the party to the action who initiated the action to get a divorce.
Defendant’s Rights and responsibilities:
Some people think that by being a defendant in a divorce action, you automatically lose certain rights, which is untrue. Be it divorce plaintiff or defendant, your rights are equal.
Being a Divorce Defendant, however, poses a certain level of responsibility on the individual; A Defendant to a divorce action should do the following things:
- Actually read the Statement of Claim he’s been served. Too often defendants don’t take the time to open the envelope they’ve been served to read what their spouse is actually after in the divorce! When people don’t read what is being claimed against them, they will more likely not take the time to find out what they need to do to defend themselves.
- Once the Defendant reads and understands what her spouse is requesting of the courts to rule on the divorce (which often includes the custody of the children, parenting, as well as child and spousal support), she needs to file the proper documents in response.
- And lastly, the Defendant needs to be aware of the filing deadlines that are listed in the Statement of Claim so that he does not miss his ability to file the proper documents.
For example, in Alberta, after a Defendant is served with the Statement of Claim for Divorce (that is; after she is handed a copy of the document), she has 20 days to file her defence in court. The 20 days are counted from the day she receives the Statement of Claim. If the Defendant does not file the proper response within those 20 days, she loses her chance to reply to her spouse’s claim or file a defence against it.
If the defendant lives in Canada but outside Alberta, that 20 day period is extended to one month. As for defendants living outside Canada, the period they have to respond to a Statement of claim initiated by a spouse who is living in Alberta is 2 months.
In Alberta, there are three different documents that a defendant may file to respond to a Statement of Claim; a Demand for Notice, Statement for Defense and a Counterclaim for Divorce. The type of document that a Defendant chooses depends on what part of the Statement of Claim he was served that he does not agree to, and why.
When is a response not necessary?
As stated earlier, a defendant in divorce needs to go through the Statement of Claim for Divorce she is served with and makes note of anything that she believes is incorrect (such as the date of separation), or that she does not agree with (such as the custody of the children). Once she establishes what part(s) of the Claim she disagrees with, she can then file the proper documentation to reflect what she believes is the correct information or post-divorce arrangement. In situations when the Defendant agrees to all the information in the document, there are no children or division of matrimonial property issues that she disagrees with (in other words, if there are no hanging issues), then the Defendant may choose to not file a response, as she agrees to what is sought after in the Statement of Claim.
What does filing a response help with?
Filing a response serves three important purposes:
- Once a response is filed by the Defendant in a divorce action in Alberta, the Plaintiff cannot proceed without the consent (the signature) of the Defendant on the final divorce court documents.
- Filing a response allows the Plaintiff to also be served with the Defendant’s documents which include clauses reflecting what the Defendant wants the courts to rule in the divorce proceedings. At this point, the documents are not just reflecting what the Plaintiff wants, but also what the Defendant is seeking.
- When a Defendant files a Counterclaim for Divorce, both parties will have the ability to continue the divorce filing and finalize the divorce as long as they obtain the consent of the other side.
It is very important to know your rights and responsibilities as a Divorce Defendant. Book a complimentary consultation with Trusted Divorce Services if you are a Defendant in an Alberta proceeding and would like to know more!