Families go through transitional times, including separation and divorce.
We are committed to assisting our clients to obtain the best possible outcome for themselves and for their children. We seek to educate our clients, advocate for their best interest, and promote their well-being and the well-being of their children post-separation.
Often matters can be resolved without resorting to expensive litigation. However, our team is also prepared to advocate for you in court should matters not resolve through negotiated settlement.
Introduction to Family law
Family law is a branch of law that encompasses the legal issues that face families. These primarily include:
- Spousal support;
- Child support;
- Division of Matrimonial Property; and
- Custody, Access, and Parenting time.
In most instances, these family problems will involve couples who have been in a married relationship or common-law relationship, but have now separated. However, the branch of family law is quite broad. It can involve people who have never been in a committed relationship, yet have a child together. It can involve adoptions. It includes grandparents or other relatives seeking visitation rights or guardianship of a child. Family law deals with issues of family violence. It also includes committed partners seeking to enter into a cohabitation or premarital contract.
Going through a family law matter can be the most stressful period in any individual’s life. Working through family issues is complex, expensive and time-consuming. Our family law lawyers are here to help our clients navigate the court system, alternate dispute resolution processes, and tough negotiations. We provide timely and important advice about the legal rights and obligations upon family breakdown and crises.
Collaborative Family Law
Collaborative family law is an alternate dispute resolution process. Separated spouses or partners work together to resolve their legal issues outside of court with the assistance of registered collaborative lawyers.
While litigation and the court system are inherently adversarial, collaborative law specifically focuses on reducing future conflict between the parties by improving communication and problem-solving skills. Honest, good faith negotiations and exchanges of information are a hallmark of the process. The parties work toward shared solutions that take into account each party’s underlying interests and concerns. Importantly, parties and their collaborative lawyers provide evidence of their commitment to the process by signing a contract that they will not engage the court system.
The process is unique to collaborative law. Your collaborative lawyer will help guide you through a series of settlement meetings with the other party and their chosen collaborative lawyer. The parties decide what topics and issues will be discussed and actively participate in generating options and solutions. Parties may also choose to retain other collaboratively trained professionals, such as a financial specialist or parenting expert, to provide information and expert assistance throughout the process. Any resolutions reached can then be formalized into a legally binding settlement agreement.
Should you want to speak to a divorce and family law lawyer about your matter, please call our office at 780-482-7691 to set up an appointment or send us a message here and we will get back to you as soon as possible.
Frequently Asked Questions
+ Can I Get a Divorce?
Spouses can obtain a divorce in Canada if one or both have been resident in Canada for at least one year immediately preceding the filing of a Statement of Claim for Divorce.
The Divorce Act states that a divorce will only be granted by a court for one reason: marriage breakdown. Marriage breakdown can occur in 3 different ways:
In Canada, nearly all divorce judgments are granted based on this ground of marriage breakdown.
A court may grant a divorce judgment if spouses have lived separate and apart for at least one year prior to the judgment being granted. While the divorce action itself may be started prior to the end of the one-year separation period, the spouses must wait the entire year before requesting a divorce judgment. Corollary matters, such as child or spousal support and the division of matrimonial property, may be settled prior to the completion of the one-year period to ensure that spouses are able to file for a divorce judgment as soon as possible following the year’s end.
Notably, there does not have to be a mutual intention to separate to satisfy this ground of marriage breakdown. As long as spouses have lived separate and apart for the one-year time period, a court has the discretion to grant a divorce.
In certain circumstances it is possible for both spouses to live separate and apart under the same roof. To qualify as living separate and apart spouses must:
- Occupy separate bedrooms;
- Abstain from sexual relations with one another;
- Have little to no communication with each other;
- Eat meals separately;
- Refrain from performing domestic services for one another; and
- Refrain from participating in social activities together.
It should be stressed that the above list is not definitive as every separation is unique. A person seeking to commence the separation period while continuing to reside in the matrimonial home with his or her spouse should consult a lawyer.
If either spouse has engaged in sexual relations with someone else during the marriage, then the other may apply for a divorce based on the ground of adultery. A spouse cannot use his or her own adultery as grounds for a divorce.
If a spouse is using adultery as the reason for the divorce, he or she does not have to wait the one-year period before starting the divorce proceedings or receiving the divorce judgment. However, adultery must be proven to the Court. Unless the adulterer is willing to openly admit to his or her infidelity in a sworn court document, the other spouse will have the very difficult, expensive, and onerous task of gathering evidence and proving the adultery in court. Moreover, if the spouse filing for divorce has either encouraged the infidelity or forgiven the other spouse’s adultery, the Court may refuse to grant the divorce.
3) Physical or Mental Cruelty
The third ground upon which a court may grant a divorce judgment is physical or mental cruelty. Similar to the ground of adultery, only the spouse complaining of the cruelty can file for divorce (not the spouse committing it), and if established, the divorce judgment may be granted before the one-year separation period.
While the incident of cruelty needs only to occur once to satisfy this ground, the cruelty must be more than mere incompatibility; it must be of a grave and weighty nature, and so severe that it makes living together intolerable (Burbage v Burbage (1985), 46 RFL (2d) 33). The cruelty and intolerability of the situation must be satisfied both subjectively and objectively, and as a result is normally very difficult to establish.
It is highly recommended that anyone considering applying for divorce on the grounds of physical or mental cruelty or adultery speak with one of our family law lawyers before commencing divorce proceedings. As previously stated, these grounds are very difficult, time-consuming and expensive to prove, and are usually only pursued in very limited circumstances.
+ Can I get divorced in Alberta if the marriage took place elsewhere?
For a divorce to be granted under the Divorce Act, one or both of the spouses must be “ordinarily resident” in Alberta. This means that at least one spouse must have lived in Alberta for one year immediately preceding commencement of the divorce proceedings. If there are children of the marriage, it is usually best to file for divorce in the province in which the children are resident.
As long as one spouse is ordinarily resident in Alberta, that spouse may apply for a divorce in Alberta regardless of where the marriage took place. If the marriage occurred outside Canada, the Court will need proof that the marriage was valid according to the laws of the foreign jurisdiction where the marriage took place. This usually involves submission to the Court of the foreign marriage certificate and an affidavit proving the marriage was legally valid. If the marriage occurred in another province within Canada, a marriage certificate issued by the government of the province where the marriage took place will be sufficient proof of the out-of-province marriage.
+ What is the Parenting After Separation Seminar?
If there are any children of the marriage, it is a mandatory requirement for both spouses to attend a Parenting After Separation (PAS) course before applying for a divorce judgment or making any application to the court pertaining to the children. This course is a free 6-hour seminar for people living in Alberta. It is designed to help parents understand how family breakdown affects their children and to encourage parents to make positive, healthy choices in parenting their children after separation. After the course is completed, each spouse will receive a certificate that will then be filed with the courts. For more information on the seminar please visit: https://www.alberta.ca/pas.aspx.
+ What does the Divorce Act say about Reconciliation?
Before a court grants a divorce, it must first satisfy itself that there is no possibility of reconciliation of the spouses. A lawyer is required to inquire as to whether reconciliation is possible, to inform the client of the provisions of the Divorce Act aimed at reconciliation and to inform the client of marriage counselling or guidance facilities known to that lawyer that could assist the spouses to achieve reconciliation (if appropriate).
Under the Divorce Act, a spouse who intends to apply for a divorce based on the one-year separation period may reconcile with his or her spouse for up to ninety days without the one-year “clock” being disrupted. However, if spouses reconcile for longer than a ninety day period, the separation period will begin again. In that case, spouses will have to wait one-year from the date of their last separation before applying for divorce again.
+ What is Child Support?
Child support refers to the money that is paid by one parent for the support of his or her child(ren). Under the law, parents have a legal obligation to provide for the needs of their children. Child support monies are usually used to pay for the child’s basic necessities such as food, clothing, shelter, and schooling, but depending on the circumstances, support may include other items as well. Note that the payee (recipient) parent has no obligation to account to the payor parent how the funds are used.
After a child support award is ordered by the Court, either parent can apply to vary the terms of the Order if his or her financial position has significantly changed since the time the Order was granted. This can also be achieved by agreement of the parties or through Alberta’s Child Support Recalculation Program (RP). The RP is an administrative service that annually recalculates court-ordered child support based on current income tax information. For further information, please visit: https://www.justice.alberta.ca/programs_services/families/recalculation/Pages/default.aspx.
+ Who is a Parent?
Biological parents, adoptive parents, step-parents, or other people “standing in the place of a parent”, may be considered “parents” in the eyes of the Court and therefore might be obligated to pay child support. With respect to step-parents and other people “standing in the place of a parent”, the Court will examine the nature of the relationship between that person and the child in determining whether or not child support should be awarded. The Court will look at such things as the child’s age, the duration of the child’s relationship with the person, whether the person provided direct or indirect financial support for the child, whether the person considered applying for guardianship or adopting the child, the obligation of a biological parent to pay support, among other factors.
+ Who is a Child?
There are two primary pieces of legislation governing the care of children when parents have separated: the federal Divorce Act, and Alberta’s provincial Family Law Act. The Divorce Act applies to parents who are or were married to each other, while the Family Law Act applies to all parents, whether they were in a married or common-law relationship, were dating, or had no relationship whatsoever.
Under the federal Divorce Act, children of the marriage are entitled to support when the child:
- Is under the age of majority and has not withdrawn from his or her parents’ charge, OR
- Is of the age of majority or over and under his or her parents’ charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessities of life.
Courts have interpreted “other cause” in 2) above to include full-time students who are dependent on their parents’ financial support.
Under the provincial Family Law Act, a child is defined as a person who:
- Is under the age of 18 years, OR
- Is at least 18 years of age but not older than 22 years of age, and is unable to withdraw from his or her parents’ charge because he or she is a full-time student.
However, if the child is married, in an adult interdependent (“common-law”) relationship, or living independently, the parents are no longer obligated to provide child support.
+ Who can make an Application for Child Support?
Under the federal Divorce Act, only those persons classified as a “parent” of the child (see “Who is a Parent?”) may apply for a child support order. A child, even if over the age of 18 years, will not have status before the courts to make his or her own application for child support.
However, under the provincial Family Law Act, a broader spectrum of applicants may make an application to the Court for child support, including the child, a parent or guardian of the child, a person who has care and control of the child, or any other person with leave of the court where the court considers the application would be in the best interest of the child.
+ How is Child Support calculated?
The parent with whom the child normally resides is referred to as the “payee” or “recipient” parent, while the other parent who pays the child support is referred to as the “payor” parent. When making any calculations in relation to child support, the courts are bound by the Federal Child Support Guidelines (”Guidelines”).
Essentially, the amount of a child support order for children under the age of majority is: (1) the base amount set out in the applicable Guidelines table (each province has its own), according to the number of children under the age of majority and the gross income of the payor spouse; and (2) the amount, if any, of special expenses. Special expenses are considered to be “extraordinary” expenses and could include expenses like:
- Child care expenses;
- Health-related expenses that exceed insurance reimbursements by at least $100.00 annually;
- That portion of the medical and dental insurance premiums attributable to the child;
- Extraordinary expenses for primary or secondary school education or other educational programs that meet the child’s particular needs;
- Expenses for post-secondary education;
- Extraordinary expenses for extracurricular activities; and
- Any other expenses agreed upon by the parents to be an extraordinary expense.
The costs of these additional expenses are generally paid in proportion to each parent’s respective income.
It is also important to note that the particular parenting arrangement agreed upon by the parties can also have an effect on the amount of s. 3 child support payable. For example, in a split parenting arrangement, where one or more children live with each parent, the child support calculations start by determining what each parent would pay the other for the number of children in the other parent’s care. The difference between these two amounts, or “set-off” amount, would then be paid by the parent with the higher monthly amount. Similarly in a shared parenting arrangement, whereby each parent has care of the child/children for at least 40% of the time over the course of the year, the starting point is to determine the child support payable as if the child or children resided in each parent’s household and then calculate the “set-off”. After determination of the set-off amount, the Court will take into consideration any increased costs of the shared parenting arrangements and the conditions, means, needs and other circumstances of each parent and any of the children for whom support is sought.
The calculation of child support can be very complicated. For instance, in making a child support award the Court may take into consideration the particular custody arrangement, and undue hardships such as a high debt load, or a parent’s obligation to provide for children of a second marriage. Because of this, it is highly recommended that parents see one of our family law lawyers for assistance in making these calculations.
+ If my spouse/partner refuses to let me see our child, can I refuse to pay child support?
It is important for parents to understand that the payment of child support is NOT in any way linked to parenting time (i.e. visitation). Child Support Orders and Custody or Parenting Orders are completely distinct. If one parent does not pay child support, the other cannot deny that parent time with their child. Similarly, if one parent denies the other parent parenting time with the child, the other parent cannot refuse to pay child support. Only the Court can vary or alter a Custody or Parenting Order or Child Support Order once it is in place.
+ What is Spousal Support?
Spousal support refers to the money paid by one spouse for the support of his or her other spouse, and in essence, acknowledges the economic consequences of marital union and its breakdown. It is usually ordered as a fixed sum, which is paid on a regular monthly basis, but in exceptional circumstances a one-time lump sum may be awarded.
Verbal or written agreements entered into between spouses with respect to the amount of spousal support to be paid will be taken into consideration by the Court, but will not be determinative. Ultimately, the Court will make an award that is fair based on the current needs and financial positions of the parties. Like child support awards, Spousal Support Orders can be varied by the Court upon application by either of the spouses.
Unlike child support for children under the age of majority, spouses are NOT automatically entitled to receive spousal support. Essentially, this means that a spouse does not have an automatic right at law to be maintained in the same lifestyle he or she was accustomed to during the marriage. Rather, entitlement to spousal support must be proven to the Court. In making the assessment of entitlement, the Court will take into consideration such things as: the length of time the spouses lived together, the work each performed while they were living together, the economic disadvantages suffered by one spouse as a result of the relationship or its breakdown, and the ability of a spouse to become economically self-sufficient, among several other factors.
However, the Court will NOT take into consideration any “misconduct” of a spouse in relation to the marriage when deciding whether or not to make a spousal support award. For example, if a spouse committed adultery, this will not affect the Court’s decision of whether or not spousal support should be awarded, or how much should be paid or received.
It should be stressed that proving entitlement to spousal support is a complicated endeavour, and depends on many different factors. It is highly recommended that a spouse seeking spousal support should contact our family law lawyers for assistance in making a spousal support application.
+ I was in a common-law relationship, can I get Spousal Support?
Adult Interdependent Partners (AIPs), more commonly known as “common-law partners,” may make applications to the Court for spousal support similar to married spouses. However, while married spouses normally make their application under Canada’s Divorce Act in conjunction with divorce proceedings, AIPs must apply under Alberta’s Family Law Act.
According to Alberta’s Adult Interdependent Relationship Act, a person is considered to be the adult interdependent partner of another person if:
- He or she has agreed to become an AIP, or has lived in a relationship of interdependence for at least 3 years, OR
- He or she has lived in a relationship of interdependence of some permanence (which could be for less than 3 years) and has a child from the relationship by birth or adoption.
Like married spouses, AIPs will have to prove entitlement to support. However, depending on the circumstances, an AIP may need to provide further evidence that a relationship of interdependence existed between him or her and the other adult. Because of the potential complications that may arise, AIPs should seek legal assistance in making any type of support application.
+ How is Spousal Support calculated?
Once entitlement to support has been established, the Court will then decide how much spousal support should be awarded. To assist courts in making these calculations, the Federal government created the Spousal Support Advisory Guidelines(SSAG). The SSAG contain formulas which are used to calculate a range of money a spouse may be awarded in spousal support based on the income of both spouses and a number of different factors. These formulas are highly complex, particularly when child support is also at issue. It is highly recommended that spouses seek legal advice in this regard.
Unlike the Federal Child Support Guidelines, the SSAG are NOT legally binding, but are merely advisory in nature. This means that it is not mandatory for a Court to consult the guidelines in making a spousal support award, although most do to ensure consistent results.
+ Which takes priority, Child Support or Spousal Support?
Under the law, the payment of child support takes priority over spousal support. This means that the payor parent must satisfy his or her child support obligations before paying his or her spouse spousal support. If the payor parent is financially unable to meet both obligations, then the amount of spousal support will likely be reduced to ensure the full amount of child support is paid.
Custody, Access, and Parenting Time
+ Overview of Custody, Access, and Parenting Time
There are two primary pieces of legislation governing the care of children when parents have separated: the federal Divorce Act and Alberta’s provincial Family Law Act. The Divorce Act applies to parents who are or were married to each other, while the Family Law Act applies to all parents, whether they were in a married or common-law relationship, were dating, or had no relationship whatsoever.
Although the terminology differs slightly depending upon which Act the application is made under, the paramount consideration for a Court in making any type of Order involving children is the “best interests” of the child. Essentially, this involves crafting a Custody or Parenting Order that ensures the greatest possible protection of the child’s physical, psychological and emotional safety. The Court will also take into consideration all of the child’s needs, which include but are not limited to:
- The child’s need for stability, taking into consideration the child’s age and stage of development;
- The history of care for the child;
- The child’s cultural, linguistic, religious and spiritual upbringing and heritage;
- The child’s views and preferences;
- Any proposed plans for the child’s care and upbringing;
- Any family violence;
- The nature, strength and stability of the relationship between the child and the person applying for an Order;
- The ability and willingness of the person applying for an Order to care for and meet the needs of the child and to communicate and cooperate on issues affecting the child; and
- The views of the child’s current guardians.
It is important to stress that past conduct of a parent or guardian is irrelevant to whether or not access, parenting time, or contact will be awarded. The only instance when past conduct may be taken into consideration by the Court is if it is relevant to the ability of that person to act as a parent or guardian.
It is a mandatory requirement for both spouses or partners to attend a Parenting After Separation (PAS) course before making any application to the court pertaining to the child(ren). This course is a free 6-hour seminar for people living in Alberta. It is designed to help parents understand how family breakdown affects their children, and to encourage parents to make positive, healthy choices in parenting their children after separation. After the course is completed, each parent will receive a certificate that will then be filed with the courts. For more information on the seminar please visit: https://www.alberta.ca/pas.aspx.
+ What is “Custody”? What does it mean to be a “Guardian”?
“Custody” is a term used in the federal Divorce Act. It means the right to exercise parental authority over a child, including the right to determine how the child is raised and the right to make major decisions with respect to the child’s health, education, and overall welfare. This ordinarily includes a right to physical care of the child.
As long as there is no Court Order in place, parental rights and responsibilities are to be exercised jointly by both parents, as it is generally assumed that parents will be able to reach a consensus regarding the major decisions affecting their child. Therefore, if there is a dispute between the parents, neither parent may deny the other his or her right to see the child, or make important decisions with respect to the child, without a Court Order in place.
Please note that the federal government has recently proposed amendments to the Divorce Act aimed at neutralizing the “custody” and “access” language. If the bill passes, the new terminology will be “decision-making responsibility” and “parenting time”. “Decision-making responsibility” has been defined in the amendments as responsibility for making significant decision about a child’s well-being, including in respect of health; education; culture, language, religion and spirituality; and significant extra-curricular activities.
Guardianship is a term used by Alberta’s Family Law Act, and is essentially the provincial legislation’s equivalent to “custody” under the federal Divorce Act. Guardians are the individuals, usually the parents, who are responsible for the child’s day-to-day care and overall upbringing.
Guardians exercise parental authority and have parenting time with the child, as discussed below. This parental authority may be shared between two or more guardians, in which case all guardians would have to consult one another before making major life decisions concerning the child. However, parental authority can also be divvied up between the guardians, so that one guardian, for example, has sole responsibility for certain decisions involving the child (e.g., medical treatment, schooling) without having to consult the other guardians. If guardians are unable to cooperate with respect to decisions affecting the child, they can apply to the Court for a Parenting Order stipulating how each will exercise their parental rights and responsibilities.
The Family Law Act sets out a number of situations in which guardianship will be presumed under the law. For example, a parent who cohabitated with the other parent for at least a 12 month consecutive period during which time the child was born is presumed to be the child’s guardian if that parent acknowledges that he or she is in fact a parent of the child. Generally speaking, a parent who has never lived with the other parent nor provided for the child in any way, will not be presumed to be a guardian.
Someone who is not presumed to be a guardian can only become a child’s guardian by applying for a Court Order granting him or her guardianship status upon certain conditions being met, or by being appointed a guardian upon the death or incapacity of one of the child’s current guardians. In deciding whether or not to grant guardianship, the paramount consideration of the Court will be whether such guardianship is in the “best interests” of the child.
+ What are the different types of Custody or Guardianship?
There are primarily two different types of custody or guardianship: Joint and Sole. For ease of reading, only the custody terminology will be used in the following paragraphs.
Joint custody is the most common type of custody, and involves both parents sharing custody of the child after they separate. This type of custody is usually awarded by the Court where parents reasonably remain on good terms and are able to effectively communicate with one another with respect to their child. Under this arrangement, when either parent has physical care of the child, he or she will have care and control over the child’s day-to-day needs. However, major life decisions affecting the child, such as decisions related to medical treatment or education will continue to be made by both parents together.
Sole custody is much rarer than joint custody, and involves only one spouse having parental authority over the child upon separation. It is usually only awarded in certain circumstances, such as where there has been family violence, the other parent has significant drug or alcohol problems, the other parent has been absent from the child’s life, or other similar circumstances.
While joint and sole custody refer to parents’ legal custody of a child, that is, their decision-making responsibility with respect to the child, split or shared custody are terms used to describe the parents’ arrangement for physical custody of the child. When a child is living with one parent for a majority of the time, we often refer to that parent as the “primary custodial parent” or as having “primary care” of the child. Proposed amendments to the Divorce Act seek to clarify this terminology by substituting legal custody with “decision-making responsibility” and physical custody with “parenting time”.
In a shared custody arrangement each parent will have care of the child or children for at least 40% of the time over the course of a year. A split custody arrangement involves one or more children living with each parent – i.e. if there are two children of the marriage, one child would primarily reside with one parent and the other child would primary reside with the other parent.
+ What is “Access”? What does “Parenting Time” mean?
Access is another term used by the federal Divorce Act, and usually refers to the visitation schedule of the parent with whom the child does not primarily reside. Because a child has a right to a relationship with his or her parents, the Court will usually grant an Access Order allowing the parent who does not have physical custody of the child regular visitation with that child. This Order may set out where, when, and for how long these visits will take place. It may also be subject to certain conditions depending upon the circumstances. For instance, a parent’s access may be subject to the requirement that the parent not consume alcohol or drugs for 24 hours prior to exercising access; or where there is a threat or serious risk to the child, the access period may be supervised by another adult.
It is critical to understand that access is the right of the child, NOT the right of the parent. Access allows the child to maintain and further develop a strong, meaningful relationship with the non-custodial parent despite the breakdown of the marriage. Because of this, the custodial parent cannot deny the other parent access time unless there is a corresponding Court Order permitting that. A parent that continues to refuse access in the face of an Access Order may be found in contempt of court and subject to a fine and possible imprisonment. As a result, when crafting a Custody or Access Order under the Divorce Act, the Court will take into consideration the willingness of each parent, if granted primary residency, to facilitate access and encourage a relationship with the other parent.
If there is a material change in circumstances since the implementation of the last Court Order, a parent may apply to the Court to have the Access Order reviewed and altered if necessary. However, what constitutes a “material” change may be difficult to determine. Anyone seeking to vary an Access Order should consult a lawyer prior to making an application.
Parenting time is a term used by Alberta’s Family Law Act, and is essentially the provincial legislation’s equivalent to “Access” under the federal Divorce Act. Generally, it refers to the physical time that is spent with the child by his or her guardians. Under the law, each guardian is presumed to have equal rights to parenting time, meaning that each guardian has equal obligations and responsibilities for the physical care and upbringing of the child.
As noted above, the primary consideration of a court when allocating parenting time under an Access Order or Parenting Order is the “best interests” of the child. Depending on the level of cooperation and communication between the guardians, the Order may be very general or specific. For instance, the Order may stipulate that one guardian is to have primary care of the child, while the other is to have generous and reasonable visitation. However, in high conflict situations, the Order may stipulate exactly the time periods in which parenting time is to be exercised and how holidays are to be divided.
Please note that the federal government has recently proposed amendments to the Divorce Act aimed at neutralizing the “custody” and “access” language. If the bill passes, the new terminology will be “decision-making responsibility” and “parenting time”.
+ I am not a parent or guardian of the child. Can I apply to the court for visitation?
Firstly, it is important to emphasize that persons who are not guardians do NOT have any right to visitation with a child. Rather, non-guardians seeking physical time with a child must make a court application under Alberta’s Family Law Act for “Contact.”
Contact is a term used by the Family Law Act and refers to the time that someone who is not a guardian has with a child. This type of application can be made by parents who are not guardians, as well as by grandparents, aunts and uncles, other extended family members, or any individual who has a significant relationship with the child. Similar to parenting time and access, the Court’s primary consideration in deciding whether or not to implement a Contact Order or how to structure it will be the “best interests” of the child.
+ Can a child decide whom to live with?
When determining how to structure any Order relating to custody, access, parenting time, and contact, a court will take into consideration the child’s preferences if the child is old enough and demonstrates a level of maturity. In high conflict custody and access matters, the court has the discretion to appoint independent legal counsel for the child.
The weight or significance to be given to the child’s views will depend on such factors as the age and maturity of the child, the child’s reasons for wanting to live with that particular person, and how strongly the child desires to live with or maintain a relationship with that person. Although there is no particular age at which children have the right to decide who to live with, generally speaking the wishes of a child over the age of 12 are usually taken into consideration by the courts, while the wishes of an older teenager are likely to be decisive in terms of the outcome.
Division of Matrimonial Property
+ What is the division of Matrimonial Property?
In Alberta, the division of matrimonial property is governed by Alberta’s Matrimonial Property Act (MPA). This Act sets out a legislative framework by which Courts attempt to divide property between spouses in the event of a separation or divorce. Importantly, the MPA only applies to married spouses, NOT adult interdependent partners (i.e. “common-law spouses”), and spouses must be ordinarily resident in Alberta for one year prior to making an application under this Act.
Often matters dealing with matrimonial property division are highly complex, particularly with respect to valuation and any potential tax implications that may arise. For instance, each employment pensions’ corresponding legislation sets out the specific process for division of that asset upon marital or relationship breakdown. In most cases, spouses should consult a lawyer for assistance in making any application under the MPA.
+ What is Matrimonial Property?
Essentially, matrimonial property consists of all the property acquired by the spouses, whether acquired jointly or separately, during the marriage. When the marriage ends, the law presumes an equal division of the matrimonial property – i.e. a 50/50 split between the spouses – unless either spouse is able to provide very good reasons why an equal division would be unfair. In such a case, where spouses cannot agree on how property should be divided, the Court will take into consideration a number of factors in making its decision, such as the contributions made by each spouse to the marriage and welfare of the family, the indirect or direct contributions made by a spouse to the operation of a business or farm owned or operated by one or both spouses, the duration of the marriage, and the tax liability that may be incurred by a spouse as a result of the transfer or sale of property.
Similar to Spousal Support Orders, the Court will not take into consideration any misconduct by a spouse during the marriage (e.g., adultery, cruelty) when deciding how to fairly divide the matrimonial property. However, economic misconduct by a spouse, such as the deliberate dissipation of matrimonial assets to defeat a claim by the other spouse, will be taken into account by the Court.
Examples of Matrimonial Property that may be divided include:
- The Matrimonial home;
- Pensions (subject to applicable pension legislation);
- Investments, stocks, bonds;
- Bank accounts;
- Cash surrender values of life insurance policies;
- Shares in a corporation or other corporate interests;
- Motor vehicles; and
- Personal assets.
Generally, the market value of property acquired prior to the marriage is not considered “matrimonial property” and is thus not subject to division upon marriage breakdown. This is referred to as “exempt property.” However, the increase in value of the exempt property, such as the interest earned on investments purchased by one spouse prior to the marriage, may constitute matrimonial property and the Court will ultimately divide such growth based on what is just and equitable in the circumstances.
Exempt Property which may not be divided are:
- Property acquired by a spouse before the marriage;
- Debts acquired by a spouse before the marriage;
- Property acquired by a spouse by inheritance;
- Property acquired by a spouse by gift from a third party;
- An award or settlement for damages in tort in favour of one spouse (e.g., settlement monies from a motor vehicle accident claim) unless it is compensation for both spouses; and
- The proceeds of an insurance policy unless the proceeds are compensation for a loss to both spouses.
It should be cautioned, however, that if any exempt property is “brought into the marriage” (e.g., inheritance monies used to purchase matrimonial home or mixed with matrimonial funds in an investment account), the other spouse will likely have a claim in relation to it.
+ When should the Matrimonial Property be divided?
An application to divide matrimonial property under the MPA can be made on its own or in conjunction with divorce proceedings. This means a spouse can make an application under the MPA if he or she is separated and not yet divorced, or if he or she has already begun divorce proceedings.
If a divorce judgment has been granted, or if spouses are separated but not yet divorced, any application for property division under the MPA MUST be made within two years.
+ Can Property outside Alberta be divided?
The “moveable” or “immoveable” distinction is key when determining whether a court in Alberta will be able to make an order with respect to matrimonial property located outside the province.
While the MPA allows a court in Alberta to take into account the value of immoveable property (e.g., homes, bare land) situated outside of the province to ensure an equal distribution of all matrimonial property, it does not allow a court in Alberta to make any Orders in relation to immoveable property. For example, an Alberta court could take into consideration the value of a spouse’s ownership interest in land outside of the province, but could not order that the property be sold and the proceeds split equally between the parties.
Conversely, Alberta courts have the jurisdiction to make any order needed with respect to moveable property, regardless of whether it is located within or outside the province. Moveable property is property that can be physically removed or relocated, such as cash in bank accounts, shares in a company, vehicles, etc.
+ Can my spouse and I divide our Property using a Separation Agreement?
Spouses may enter into an agreement setting out how property is to be divided in the event of a separation and/or divorce. For the agreement to be legally valid, it must:
- Be in writing;
- Be entered into freely by each spouse (i.e. neither spouse was forced or unduly influenced into signing the agreement by the other spouse or a third party); and
- Indicate that each spouse had independent legal advice (i.e. each spouse consulted a different lawyer) with respect to the repercussions of signing the agreement prior to signing it.
By entering into a separation agreement, spouses agree to contract out of the MPA and its provisions, meaning that the MPA will not apply in terms of how their matrimonial property is divided. This is why the attainment of independent legal advice is so critical, as it ensures that spouses are properly informed of the future rights or claims they are giving up by executing the separation agreement.
+ How are debts divided between the parties?
Generally speaking, any property acquired during the marriage, whether jointly or separately, is matrimonial property and subject to division between the parties. This includes both assets and debts. As well, if one party wants to retain a particular asset in his or her name alone, they will usually assume any financing associated with it.
However, there are certain situations in which debts may be divided unequally between the parties or not at all. For example, if one spouse incurs significant debts following separation, a court may not determine that it would be just and equitable to split that debt equally between the parties. Similarly, if one party has dissipated matrimonial assets to the detriment of the other spouse, the remaining matrimonial property may not be divided equally between the parties to compensate that other spouse. In addition, if one spouse entered the marriage with a significant debt load (e.g., student loans), which were paid off during the relationship, that amount may be included as a credit to that spouse in the property division calculations.
+ What is Mediation?
Mediation is a type of Alternative Dispute Resolution. It is a way of resolving a dispute without having to go to court. In mediation, a trained, neutral third party, also known as the “mediator”, facilitates conversation between the parties with respect to their various needs and interests. Ideally, the mediator will assist parties in reaching an agreement to resolve the family law issues (e.g., custody, access, child support, spousal support, division of property). In addition to the option of hiring a private mediator, there is a mediation service available with Family Justice Services at the Alberta Courts, which is free for qualifying families. For more general information regarding the mediation process, please view the “Alternative Dispute Resolution” section of this website, and the Family Justice Services website at https://justice.alberta.ca/programs_services/families/Pages/family_mediation.aspx.
Although some lawyers may be trained as mediators, it is important to note that because the mediator must be impartial when providing mediation services, he or she cannot give legal advice to either of the parties, nor help one party gain any type of advantage over the other. As a result, obtaining legal advice prior to mediation and throughout the mediation process is recommended to ensure that parties are fully informed of their legal rights and responsibilities.
It is also important to realize that mediated agreements in and of themselves are not typically legally binding. For the agreement to be enforceable in court, the parties should use the terms of their mediated agreement to create a corresponding Court Order or legally enforceable contract upon receiving independent legal advice. If the mediation is being done by a court-appointed mediator, it is likely he or she will prepare the Order for the parties. When a Court Order is in place and one of the parties breaches it, he or she may be found in contempt of court. When a formal agreement is in place, the courts have authority to enforce the terms of the agreement against the one breaching it upon application.