About Family Law
The divorce lawyers (sometimes called divorce attorneys) in our office handle all types of family law cases from the simple to the most complicated. We have experience handling cases under the Divorce Act, the Family Law Act, the Matrimonial Property Act and other related family law statutes.
We service clients all over the province of Alberta, particularly Edmonton, Calgary, Grande Prairie, Red Deer and Fort McMurray. We also service the communities near the Edmonton area such as Stony Plain, Spruce Grove, Morinville, Leduc, St. Albert, Fort Saskatchewan and Sherwood Park.
Our divorce lawyers can assist you with any type of matter including (but not limited to), divorce, uncontested divorce, annulment of marriage, custody of children, child support, reducing child support, spousal support, alimony, reducing spousal support, division of property, grandparent’s rights, child protection etc.
We also assist clients in family law matters that do not end up in court by preparing separation agreements, pre-nuptial agreements, marriage agreements etc.
If you have had your credit rating affected, or your driver’s license suspended because of non-payment of child support, we can help you get it back. We understand how to deal with the Maintenance Enforcement Program and regularly assist both payors and payees of child support.
If you are separated or getting divorced, you need to know what your rights and the rights of your children are. Going to divorce or family court can have a huge impact on you and your children for many years. It is important that the family lawyer or divorce lawyer that you select is able to get you the best result possible.
We understand the difficulty that our clients are going through during a divorce and we work hard to ensure the best possible settlement or outcome for our clients. We offer competitive fee arrangements. If you are going through a divorce or are thinking about separating or getting divorced, please contact us for a consultation and find out how we can assist you.
Divorce and Separation
Married people have the option to be divorced if they have been separated for at least one year. It is important to note that you can still start an action for divorce under the Divorce Act before you have been separated for one year, but the divorce itself cannot be finalised until you have actually been separated for at least one year. In cases where there has been adultery or cruelty, couples can be divorced even if they have not been separated for one year.
It is also possible to obtain a declaration of irreconcilability, but generally speaking, there is no reason to take this step. Some clients ask us about getting a “legal separation” or some other term. This is almost never necessary as 1) parties almost never have to prove separation, and 2) there are other more practical ways to secure your rights on the breakdown of a marriage or common law relationship. If you are separated, and you want to either end your marriage or at least settle the issues surrounding the breakdown of your marriage such as child custody, child support, spousal support (also known as maintenance or alimony), or division of property, you can bring an action under the Divorce Act, the Family Law Act, and/or the Matrimonial Property Act.
Child Custody/Guardianship vs. Parenting Time or Access
In Alberta, it is common for courts to use either the term “custody” or “guardianship” to refer to the right of parents (or other guardians in certain cases) to make decisions for their children. While it is common for children to spend the majority of their time with one parent (usually the mother), Alberta courts usually award joint custody to the parents, meaning that both parents will have an equal say in decisions affecting the children, even if they do not have equal time.
The amount of time that the children spend with the parent that they do not live with is called “access” or “parenting time”. Unless the parties have a shared custody type of arrangement where the children spend equal or almost equal amounts of time with each parent, one parent will be given the day to day care of the children. This parent is sometimes referred to as the primary residential parent. The non-residential parent is granted access or parenting time with the children in order to ensure that each parent is able to play a role in the lives of their children. Generally speaking, the court will strive to ensure that the children have maximum contact with each parent.
In determining which parent the child will live with, the court will examine a number of factors under the overarching principle of ensuring the best interest of the child. The status quo, i.e. what the children are used to, each parent’s plan for raising the children and involving the other in the lives of the children, each parent’s availability for the children given their work obligations, the parent’s insight and ability to foster the emotional and intellectual needs of the children, and many other factors are all considered. All in all, it is best for parents to attempt to agree on a schedule that works best for them and their children, as opposed to seeking a determination from the court that one or both parents may not be happy with.
Although some parents want to cut off all contact between their child and the other parent, this only happens in the rarest of circumstances. The test is whether or not terminating the contact with his or her parent is in the best interest of the child. One parent’s dislike of the other or the apparent bad character of the access parent is not enough. Generally speaking, children benefit from contact with both parents and any judge will be extremely hesitant to even consider the complete termination of a child’s contact with a parent.
Child Support and Spousal Support
Child support is generally not complicated. The Federal Child Support Guidelines specify the amount that has to be based for child support based on 1) which province the children reside in, 2) the income of the payor and 3) the number of children who are being supported.
In addition to the “baseline” child support set out in s. 3 of the Child Support Guidelines, parents may also claim “special” or “extraordinary” expenses under s.7. These typically include, but are not limited to, daycare, sports fees, uninsured medical and dental expenses etc.
In certain circumstances, the access parent may be able to have their child support reduced if they are paying very high costs to exercise access in the form of plane fair, hotels etc. There are other circumstances in which a payor may claim undue hardship but as a general rule, it is very hard to prove undue hardship and payors should not expect any reduction of their child support.
Spousal support, also called maintenance or alimony, is not determined in the same way that child support is. A party claiming spousal support must prove their entitlement to spousal support by demonstrating that they have been disadvantaged by the breakdown of the marriage, and that their spouse has the ability to pay spousal support.
Factors that are considered when determining spousal support are: the length of the marriage, each party’s ability to work, a change in lifestyle after the marriage, ongoing child support obligations, whether or not a party is disabled, etc. Generally speaking, the court will refer to the Spousal Support Advisory Guidelines as a framework for determining the amount and duration of spousal support. That said, the court is not bound by the Spousal Support Advisory Guidelines and can deviate from them where necessary.
Imputation of Income
A further issue that can arise in support cases is whether or not one party should have income imputed to them (i.e. whether or not they should pay support based on something higher than their actual income). Usually this applies to the party paying support. The issue that the Court must decide is whether or not that party is deliberately avoiding their support obligations. What this means is that a party who is required to pay support has an obligation to seek and maintain full time employment commensurate with their skills and abilities. It does not however, mean that the payor of support has to spend every waking hour working so as to maximize their income. As long as the payor is working full time, it will be difficult to impute income to them, unless there is evidence that they are deliberately earning less than they could so as to minimize support payments.
When a payor becomes unemployed, they can apply for an immediate reduction of support to reflect their actual income, but this will not be allowed to continue indefinitely. They will have to show that they are making reasonable efforts to find employment and if the unemployment is prolonged, they may have income imputed to give them an incentive to find employment. Alberta Courts have stated that short of suffering from a mental or physical disability, a non-custodial parent must always pay some support. Even parents who do have some limitations on their ability will still be required to make efforts to earn what they can in order to support their children or spouse.
Another context in which income can be imputed to a party for child support or spousal support purposes is where the parent paying support is self-employed. Self-employed parents have some tax advantages in terms of what they can deduct from their income such as fuel and milage for their vehicle, travel and meal expenses, etc. A judge may, but is not required to, add back some or all of the deductions made from income if he/she feels that the deductions claimed are unreasonably high (even if they are accepted by CRA for income tax purposes) or even if they are reasonable so as to ensure that child or spousal support is paid at a level that truly reflects that parent’s ability to pay.
A related issue in most divorce proceedings is the division of family assets. This issue is actually governed by the Matrimonial Property Act, not the Divorce Act. Each province has its own legislation governing the division of matrimonial property. Unmarried couples do not per se have a right to equalise the property acquired during the relationship, but they can seek a constructive trust in one or more of the assets of their former partner if they can prove that they contributed to their partner’s acquisition of assets during the common law relationship.
A common misconception is that a wife gets half of her husband’s assets on divorce. This is incorrect. The court will examine each spouse’s increase in net worth (assets minus debts) and equalize the difference. An equal division of property is presumed and any party seeking an unequal distribution will have to prove that their spouse improvidently depleted assets. That said, which assets are subject to division, whether or not certain assets are exempt from equalization and what value is assigned to the assets can be complicated and it is best to contact experienced counsel to deal with these issues.
Separation Agreements and Other Domestic Contracts
Separation Agreements are an agreement by spouses (either married or common law) on how to settle all the issues arising from the breakdown of their marriage, such as custody and access of children, child support, spousal support, division of property etc. Many people prefer this option to litigation as, with the assistance of a lawyer, they can discuss their rights and obligations and come up with terms that both parties are happy with, rather than face the uncertainty of litigation. Unless there is a situation of high conflict, this is a viable option for many people.
Marriage Agreements (also known as Pre-Nuptial Agreements) and Adult Interdependent Partner Agreements (also known as Cohabitation Agreements)
Anyone who owns property should consider entering into a contract prior to getting married or starting a common law relationship. A pre-nuptial agreement allows partners to specify their rights and obligations and settle future property issues in the event that they separate from each other. This must be done prior to marriage. You cannot make this type of agreement during a marriage and by the time you separate, your assets and debts may have changed significantly, along with the amount your spouse could be entitled under the Matrimonial Property Act.
If you are considering a pre-nuptial or separation agreement, please call us first to see what your options are and what is realistic in your situation. Never prepare any kind of marriage contract on your own and do not use ‘do-it-yourself’ type kits purchased online or at book stores and similar establishments. Our experienced lawyers can guide you through the process in order to avoid future litigation if one party wants to set aside the agreement.
Common Law Relationships
Not all parents are married. While unmarried couples are generally treated the same as married couples with respect to child custody, access, child support and spousal support (also referred to as adult interdependent partner support for common law couples), the key difference is that common law partners have no legal entitlement to the equalization of matrimonial property. Rather, common law spouses may obtain a constructive trust in the assets of their former partner if they can prove that they contributed in a material way to the increase in value of an asset or assets owned by their partner.
One of the most contentious issues in family law is when one parent wishes to move to a different location with a child and the other parent is opposed to the move. This is actually one of the most difficult issues to litigate in family law and there is often very little middle ground for settlement as one parent has very compelling reasons for wanting to relocate with their child while the other has very compelling reasons for wanting the court to disallow the move.
The one thing that family lawyers and judges tend to agree on in this area is that every case is unique and fact specific. It is next to impossible to advise clients on a general level about when a parent will be permitted to move with their child and when they will not. This is because, as I said above, the case law is diverse and every case turns on its specific facts.
One observation that I can make is that courts tend to favour the status quo and in the absence of compelling evidence, will prefer that the status quo continue as long as it appears to be working well for the child. This is not to say that there is a presumption in favour of the status quo, but that the parent seeking to move with the child will have to offer evidence that the move will be beneficial to the child, beyond mere speculation.
According to the Supreme Court of Canada, a judge deciding a mobility application must consider the following 7 factors:
(a) the existing custody arrangement and relationship between the child and the custodial parent;
(b) the existing access arrangement and the relationship between the child and the access parent;
(c) the desirability of maximizing contact between the child and both parents;
(d) the views of the child;
(e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
(f) disruption to the child of a change in custody;
(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
These factors are not the only factors that may be considered. Courts must take into account all available evidence. In addition to the 7 factors mentioned above, I would recommend that the parent seeking to move provide evidence of the following:
(a) how to include the other parent in the life of the child once the move is made;
(b) which new school the child will attend, along with evidence of specific programs offered at that school and why it may be better than others;
(c) what extracurricular activities the child is expected to participate in;
(d) what childcare arrangements the moving parent will be using (assuming that they will not be a stay at home parent;
(e) the support network of family and friends available in the new area;
(f) if the purpose of the move is to be closer to a new spouse or partner;
(g) the cost of living under the new circumstances and how the moving parent expects their finances to work out;
(h) whether or not the moving parent has the means to carry out the plan (i.e. pay for the move, pay for new accommodations, find a job in the new area etc.); and
(i) whether there is employment available in the new location (having an open offer of employment would be preferable to promising to search for work).
Again, these factors are also not meant to be exhaustive but would be helpful for any parent seeking to move with their child.
I personally think that courts should be more flexible with respect to the primary parent’s need to relocate. The primary parent (i.e. the one who has day-to-day care of the child) will see circumstances change in their life and will need to move on. They usually have more skin in the game so to speak and I feel that it is unfair for parents to be unnecessarily constrained by the convenience of the access parent.
Mediation and Collaborative Law
Some family litigants may see mediation as an attractive alternative to litigation. At some level it is, but my opinion needs to be qualified.
I see a number of lawyers in this province (and in Ontario where I used to practice as well) advertising their services as mediators. The pitch made for couples going through a divorce or separation is that by hiring a mediator instead of a lawyer to launch a court proceeding, you are not only avoiding the stress of litigation, but also saving a great deal of money by mediating the dispute instead of going to trial.
While it may be less stressful to mediate, overall, I think it is generally impractical and potentially self-defeating to try to use mediation as an alternative to trial. Many of these mediators charge as much, if not more than most lawyers for their time and while the parties may agree to split the cost between themselves, they will still have to each hire their own lawyer to give independent legal advice prior to signing the agreement for it to be enforceable.
Also, most divorces do not end up in trial. In fact they rarely do. Many cases are settled at an early stage and many lawyers advise their clients about settlement options up front. If clients want an amicable resolution then lawyers can provide one.
Another point is that there is nothing preventing parties in litigation with lawyers from hiring a third party mediator (for a fee of course) or using judicial dispute resolution processes at no cost. Either option can result in a fast, inexpensive and relatively pain free divorce. Overall, I recommend consulting with a lawyer about all available options before making a final choice.
Another option that is marketed is that of collaborative family law. This is a particular ‘brand’ if you will, of family litigation in which lawyers who are certified as collaborative lawyers try to essentially engage in discussions without litigation, the reasoning being that it is a more respectful and less expensive alternative to traditional litigation for couples going through a divorce or separation.
Again, I think that many of the purported benefits of collaborative law are illusory. There is no reason why any lawyer cannot follow a collaborative type of approach in which a settlement or separation agreement is negotiated prior to starting litigation. This is indeed a common occurrence. Further, collaborative practice has the disadvantage that if the parties do not settle with the collaborative lawyers, both lawyers will withdraw and the money spent on them will be gone, but the parties will essentially be at square one in the process. Overall, I would not recommend that my clients go through collaborative lawyers.
Men’s Rights Advocates
I have seen a growing number of male family litigants having views consistent with a movement known as the men’s right movement. These men typically want shared custody at a minimum and will not settle for anything less. At a general level, they feel that family law is unfairly tilted toward women, that lawyers and judges are sometimes corrupt or lazy and thus will not listen to their concerns, and they seem to take an adversarial stance as against their former partner.
In my experience, shared custody is certainly a possibility in many, but certainly not all situations. The problem with many of the men’s rights proponents is that they adversarial stance that they take usually negates their chances of being successful. The best way to move towards shared custody is by limiting conflict and by being as amicable as possible. Mediation and/or judicial dispute resolution is a much better avenue to achieve shared custody than a trial. With that said, it is my opinion that many judges, particularly newer appointees are very open to shared custody in most situations, provided that both parents are reasonably competent, and they live reasonably close together so as to make a week-on, week-off rotation work for a child. While in some circumstances, shared custody may be inappropriate where there is a situation of high conflict, some judges may view shared custody as a means of diffusing the conflict.