Key Takeaways
- Under the Alberta Rules of Court, the time to file and serve a statement of defence or a demand for notice is generally 20 days if you were served in Alberta, one month if you were served elsewhere in Canada, and two months if you were served outside Canada.
- The clock runs from service, not from when you got around to reading it, and not from when you found a lawyer.
- Missing the deadline does not end your case automatically. It exposes you to being noted in default, after which the other side may be able to proceed without you.
- A noting in default or a default judgment can be set aside, but you generally have to explain the delay, move promptly once you know, and show you have a defence worth hearing.
- Filing a demand for notice preserves your right to be told what is happening even if you are not contesting everything.
Being handed a Statement of Claim is disorienting, and one of the most common mistakes that follows is not a legal one. It is waiting. People wait to calm down, wait for a lawyer to call back, wait until after a weekend they had planned. Meanwhile a deadline runs that nobody mentioned.
This article sets out what that deadline is, what happens if it passes, and what can be done afterwards. It is general information about Alberta procedure rather than advice on your file, and the safest thing you can do with a claim in your hand is speak to a lawyer quickly.
How Long You Actually Have
The Alberta Rules of Court set the response time by reference to where you were served, not where you live and not where the case was filed.
Served in Alberta: generally 20 days.
Served elsewhere in Canada: generally one month.
Served outside Canada: generally two months.
Two points about this that catch people out. The period runs from the date of service, so if the documents sat unopened on a counter for a week, that week is gone. And the deadline is for filing and serving your response, not for deciding what you want to do about it, so the practical time available is shorter than the number suggests.
If the deadline is close and you do not yet have a lawyer, that is worth saying to the other side's counsel in writing. Consent to a short extension is common and usually easier to obtain before the date passes than after.
What You Can File
There are two ordinary responses, and they are not the same thing.
A statement of defence disputes what is claimed. It is what you file when you disagree with some or all of the relief being sought, whether that concerns the divorce itself, family property, support or parenting.
A demand for notice does not dispute the claim, but it preserves your right to receive notice of the steps in the proceeding. It is the appropriate filing where you do not intend to contest what is being asked for but you still want to know what is happening and to be served with what comes next.
Which one fits depends entirely on what is being claimed and what you actually want, which is one of the reasons this decision benefits from advice rather than a form filled in quickly.
The deadline runs from service, and missing it hands the other side the ability to proceed without you.
Speak to a lawyer about your situation →What Happens If the Deadline Passes
Nothing dramatic happens on the day itself. No judgment lands automatically and no bailiff appears. What changes is that the other party becomes entitled to take a step you can no longer prevent.
The first step is noting in default. Once you are noted in default, you are in a materially weaker position, because the proceeding can move forward without your participation in the ordinary way.
What follows depends on what was claimed. In some matters the other side may then seek judgment. In family matters the court retains a supervisory role over children's issues in particular, so a default does not simply hand the other party everything they asked for, but it does remove your voice from the process at the point where it matters most.
Setting Aside a Default
A noting in default or a default judgment can be set aside, and Alberta courts do set them aside. It is a discretionary remedy rather than an entitlement, and the applications that succeed generally share three features.
An explanation for the default. Not an excuse, an explanation. Illness, genuine non-receipt, a period in hospital, documents served on an address you had left. The question is whether the failure to respond is understandable.
Promptness. Moving quickly once you learned of the default matters a great deal. Delay after discovering the problem is far harder to explain than the original delay.
An arguable defence. The court will want to see that there is something genuinely in dispute, because setting aside a default to allow a defence that goes nowhere serves nobody.
The court can impose terms when it sets a default aside, including as to costs. It is a recoverable situation, but it is a more expensive and less certain path than responding on time would have been.
The Other Clock You May Not Know About
Responding to the claim is the immediate deadline. There is a second one that matters in Alberta family matters, and it is easy to miss because nothing about the served documents draws attention to it.
Claims for the division of family property under Alberta's Family Property Act are subject to a limitation period tied to events such as a divorce judgment or a declaration of irreconcilability. Property claims can be lost by the passage of time, and the loss is not always obvious while it is happening.
If you have been served with anything that mentions divorce or family property, this is worth asking a lawyer about specifically rather than assuming the property question can wait until the parenting question is resolved.
What to Do in the First Few Days
Write down the date you were served and keep whatever came with the documents, including the envelope. If service is ever in dispute, that record matters.
Read what was actually claimed rather than what you fear was claimed. Statements of claim are drafted broadly, and the relief sought is often wider than what the other side realistically expects to get.
Do not sign anything the other side sends you in the meantime, and do not move money or property while a claim is outstanding.
Get advice before the deadline rather than after it. The same conversation is shorter, cheaper and more useful on day three than on day forty.
Frequently Asked Questions
How long do I have to respond to a Statement of Claim in Alberta?
Generally 20 days if you were served in Alberta, one month if you were served elsewhere in Canada, and two months if you were served outside Canada. The period runs from the date you were served, not from the date you read the documents. Because the deadline is for filing and serving your response, the practical time to make decisions is shorter than it sounds.
What is the difference between a statement of defence and a demand for notice?
A statement of defence disputes what is being claimed. A demand for notice does not dispute the claim but preserves your right to be notified of the steps in the proceeding and to be served with what comes next. Which one is appropriate depends on what is being claimed and what you actually want, so it is worth advice rather than a quick decision.
What happens the day after I miss the deadline?
Nothing automatic. What changes is that the other party becomes entitled to note you in default, after which the proceeding can move forward without your participation in the ordinary way. In family matters the court keeps a supervisory role over children's issues, so a default does not simply grant everything claimed, but it does remove your voice at the point it matters most.
Can a default judgment be set aside in Alberta?
It can, and Alberta courts do set them aside, though it is discretionary rather than automatic. Applications that succeed generally show an understandable explanation for the default, prompt action once the default was discovered, and an arguable defence. The court can impose terms, including as to costs.
Can I get more time if I have not found a lawyer yet?
Often, yes. Consent to a short extension is common in Alberta practice and is usually far easier to obtain before the deadline passes than afterwards. Ask the other side's counsel in writing, and keep the reply.
I was served but I agree with most of it. Do I still need to file something?
Usually yes. Agreeing with the general direction is not the same as accepting every term of the relief claimed, and filing nothing leaves you exposed to being noted in default. A demand for notice is often the appropriate filing where you are not contesting the claim but want to stay informed.
Served? Speak to Someone This Week
The useful thing about this situation is that it is time-limited and fixable. Responding on time costs a fraction of what setting aside a default costs, and it keeps every option open.
At Cunningham Family Law, William Aadil Musani acts in divorce and separation matters across Calgary, including files where property and corporate interests are in issue alongside the immediate procedural deadline.
If you have been served, contact us or email info@cunninghamfamilylaw.com and say in the first line that you have been served and on what date.
The information provided in this article is for general informational purposes only and does not constitute legal advice. Every situation is unique, and the outcome of any legal matter depends on the specific facts and circumstances involved. Procedural rules and time limits change, and the time limits that apply to your matter may differ from those described here. Reading this article does not create a solicitor client relationship. If you have been served with court documents, contact a family lawyer directly and without delay.
William Aadil Musani is a Calgary family lawyer and the founder of Cunningham Family Law. Before family law, he practised corporate law, tax law, and M&A with international firms and a Tier-1 Canadian tax boutique, experience he now applies to financially complex divorce and separation matters. More about William →