Family Law FAQ
Divorce & Family Law FAQ'sFAQs
Family Law can be a fairly complex area of the law. We try to make things more simple for you. Below we provide some basic information to get you on the right track. We would love to meet with you to answer any questions that you might have about your situation. Use our form below or give us a call.
Family Law can be a fairly complex area of the law. We try to make things more simple for you. Below we provide some basic information to get you on the right track. We would love to meet with you to answer any questions that you might have about your situation. Use our form below or give us a call.
Learn more about our Family Law Lawyers
What are the grounds for Divorce in Canada?
There are three grounds for divorce in Canada. First, have you been separate and apart for a year? Second, was there adultery by the other party? Third, was there either physical or mental cruelty by the other party? There are specific rules to determine each of these grounds. You do not have to be separated for a year to start the divorce process with the courts. Adultery or cruelty must be proven as grounds, and these issues do not affect matrimonial property or things like spousal support. Most people rely upon the one year separate and apart ground.
What is the difference between a contested and an uncontested divorce?
An uncontested divorce is where both parties agree on the terms of the divorce, and the grounds have been met. The divorce can potentially be completed through the proper paperwork and procedure without a hearing, keeping costs down. Usually corollary issues, such as custody, access and support need to be resolved (at least on an interim basis) before a judge will finalize an uncontested divorce. A contested divorce is where there are outstanding or complex issues, usually regarding the grounds, custody, access or support. It is recommended that you obtain legal advice when faced with a contested divorce situation.
What is the difference between a divorce and a legal separation?
A divorce is a legal dissolution of a marriage. A divorced person can remarry. A person is separated once they have determined to be separated from their spouse or partner. There are issues regarding separation related to one of the grounds for divorce, but that is not related to "legal separation." There is no such thing in our jurisdiction as "legal separation." What people are probably referring to is a Separation Agreement or Contract. When parties have negotiated an agreement regarding such things as custody, access (or parenting), child support, spousal or partner support, or matrimonial property, or all of the above, they may wish to enter into a binding contract that outlines the terms for each of these things. The courts insist that when parties want to enter into such a contract that they need to obtain independent legal advice. This is so that the parties are properly informed about the legalities of what they are signing, including the applicable legislation, such as the Divorce Act, the Matrimonial Property Act, the Family Act and the Dower Act.
What does a separation agreement do?
A separation agreement (sometimes also referred to as Minutes of Settlement or a Divorce & Property Contract, depending on the circumstances) is a legal contract between the parties that is entered into where there is a full agreement on all relevant issues, such as the divorce, separation, custody, access, parenting time, child support, spousal or partner support, and matrimonial or partner property. The courts highly recommend that both parties entering into this type of contract obtain independent legal advice so that each party knows what it is getting into. This kind of contract can protect both parties in that it can provide for certain indemnifications and provisions that each party can later rely upon if the other party tries to back out of the agreement, or do something contrary to the law or the agreement. These contracts, if prepared and executed properly can be very binding agreements.
What are Minutes of Settlement?
See above.
Am I in a Common-Law Relationship, and if I am, what implications does that have?
This is a very complicated question, and something you should seek a lawyer's advice on. You can find a variety of answers to this question at the CPLEA website.
What is Joint Custody?
Joint Custody is where the parents both enjoy an equal parenting relationship. It is where both parents contribute to making important decisions for the child(ren), such as where they will go to school, important medical or dental decisions, religious upbringing, etc. Both parents need to be capable and willing to work together and reach agreements. Other forms of custody can include Sole Custody (where one parent makes all decisions), Split Custody (where each parent has one or more children), and Joint Shared Custody (where the children spend close to equal time with each parent).
The parent who has physical control of the child at any one time generally makes decisions regarding day-to-day care.
How does child support work?
Child support is regulated by the Federal Government through the Federal Child Support Guidelines. It becomes payable as soon as parents separate. Where one parent has the day-to-day care more than 60% of the time, the other parent pays full child support under the Guidelines. Where the parents have the children closer to 50% of the time (at least 40% of the time), then an offset payment occurs, where the difference between each parent's obligations under the Guidelines becomes the amount payable by the parent with the higher income.
Child support is the right of the child. There are two aspects to child support. Section 3 base child support is based on the Guideline Income of the paying parent (often it is line 150 on the last year's income tax assessment). See links below to find out how to calculate child support. Section 7, or extraordinary expenses are often paid on a proportional basis, based on the incomes of both parents.
Am I entitled to spousal or partner support?
There is not an automatic entitlement to spousal or partner support. It is not regulated in the same way as child support. It is based upon common-law principals, and is determined on a case-by-case basis. Many factors can come into play when calculating spousal support, and it is recommended to speak to a lawyer to determine what your rights or responsibilities are. Spousal support can be paid on a monthly basis, or as a lump sum payment.
Can I be separated but still live in the same home?
Yes, it is possible to be separated but still remain in your home together. There are implications to this, however, and it is important to seek legal advice to ensure that this scenario is not affecting your ability to be divorced, or is not affecting other issues such as payment of mortgages, child support, spousal support, etc. Economic constraints has made this scenario a reality in many households, and the courts often take this into account when making decisions.
How is child access determined?
Short of an agreement between the parties, child access is usually based upon what is in the best interests of the child. There is no set formula for child access. There are many potential scenarios, and each family situation is unique. There is no default access regime, and the courts do not generally favour one sex over the other. The courts always look at what is best for the children. Examples of access include "reasonable and generous access," "shared access," "as agreed upon from time to time," "Every second weekend," "All summer holidays and Christmas holidays," etc. There are literally hundreds of potential regimes. It is recommended to speak to a lawyer to determine what might be appropriate for your situation.
What is supervised access?
Supervised access is where one parent can only have access to the children where a trusted third party, or a professional third party is present. This is required when there are potential safety or well-being concerns regarding the parent, such as when there is a history of domestic violence, drug or alcohol abuse. This regime is put into place to ensure the safety and well-being of the children.
At what age can my children decide where they want to live?
From the Alberta Courts Website: "There is no magic age when a child is considered "old enough" to decide for themselves which parent they want to live with. If the parents cannot agree, the judge will decide custody and access, or parenting issues on the basis of the best interests of each and every individual child – until they reach the age of 18.
The judge may listen to the wishes of a child, provided the judge feels that the child is mature enough to give their opinion. The older the child is, the more weight the judge will put on the child's wishes.
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How is matrimonial property divided?
In Alberta, the Matrimonial Property Act determines this question. The default rule is that all property and liabilities acquired during the course of a marriage, whether in your name, your spouse's name, or jointly is to be split evenly. Either spouse may be able to ask for certain exemptions to this default rule, for example for inheritances, gifts or certain property that was brought into the marriage. This can be a fairly complex area, and it is recommended to seek legal advice before making any decisions regarding matrimonial assets or debts.
What should I do if I am served with Divorce or other court documents?
You should seek legal advice immediately. There may be strict deadlines that you are facing, and it is important to understand all of the implications involved in the court action you are facing. It is an excellent idea to speak to a lawyer before submitting any reply documents with the courts, as some things are irreversible once you have filed them with the courts. In turn, some issues can be dealt with more properly upon receiving legal advice from a lawyer.
No doubt you have many questions about your situation. We would be happy to sit down with you and go over your problem and discuss options towards solutions.
LETOURNEAU LLP can assist you in the following areas of Family Law:
- Divorce (Contested and Uncontested)
- Custody
- Access
- Parenting
- Child Support
- Spousal or Partner Support
- Matrimonial Property
- Collaborative Divorce
- Mediation
- Arbitration
- Mediation/Arbitration
- Negotiation
- Judicial Dispute Resolutions
- Separation Agreements
- Minutes of Settlement
- Divorce and Property Contracts
- Pre-Nuptial Agreements
- Transfer of Property
- Refinancing and Registering a new Mortgage
- Certificates of Lis Pendens
- Transfer of Business or Farm Property
- Hearings or Trials
- Appeals
Learn more about our Family Law Lawyers
More Family Law Resources for Frequently Asked Questions
- Parenting Time - Student Legal Services
- Divorce - Student Legal Services
- Matrimonial Property - Student Legal Services
- Common-Law Relationships - Student Legal Services
- Child and Spousal Support - Student Legal Services
- Parenting, Custody and Access - Student Legal Services
- When You Divorce or Separate - Law Society of Alberta
- Alberta Courts: Parenting After Separation (PAS)
- Federal Child Support Guidelines
- Alberta Justice Maintenance Enforcement Program (MEP)
- Collaborative Divorce
- Alberta Justice: Families
The information on this website is for information purposes only and should not be construed as legal advice.
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