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Understanding the Difference Between Contested and Uncontested Divorce in Edmonton, Alberta

by admin | Jul 26, 2023 | Best Lawyers in Edmonton, Blog, Divorce and Separation, Divorce Attorney, Divorce Lawyer, Divorce Mediation

Divorce can be a challenging and emotionally charged process, and the way it unfolds often depends on the level of agreement between the parties involved. In Alberta, as in many other jurisdictions, divorces can be categorized into two primary types: contested and uncontested. Each approach has its own set of characteristics and implications, and understanding the differences can help individuals navigate the divorce process more effectively.

What Is Contested Divorce?

A contested divorce occurs when the spouses are unable to reach a mutual agreement on critical issues such as the division of property, child custody, spousal support, or any other significant aspect of the divorce settlement. In such cases, the court becomes the decision-maker, and the process tends to be more complex, time-consuming, and costly.

Key Characteristics of Contested Divorce

1. Disagreements on Major Issues: In a contested divorce, spouses have substantial disagreements about fundamental matters, often requiring legal intervention to resolve.

2. Court Involvement: Contested divorces usually involve court hearings, where a judge will make decisions on issues where the spouses cannot reach an agreement.

3. Higher Legal Costs: Legal fees can escalate in contested divorces due to the extended court proceedings and the involvement of lawyers to represent each party.

4. Lengthy Process: Contested divorces generally take longer to conclude, potentially stretching the process over several months or even years.

5. Emotional Toll: The adversarial nature of contested divorces can take a significant emotional toll on both spouses and any children involved.

Real-Life Example:

Imagine a couple in Alberta who cannot agree on the division of their substantial assets and the custody arrangements for their children. This leads to a contested divorce where they each hire lawyers to present their cases in court, resulting in a protracted legal battle.

What Is Uncontested Divorce?

Conversely, an uncontested divorce occurs when both spouses can agree on all critical issues related to their separation. This type of divorce is generally faster, less expensive, and less emotionally draining than a contested divorce.

Key Characteristics of Uncontested Divorce

1. Mutual Agreement: In uncontested divorces, the spouses have reached a mutual agreement on all essential issues, including property division, child custody, and support.

2. No Court Hearings: Since there are no disputes to resolve in court, uncontested divorces do not involve hearings before a judge.

3. Lower Legal Costs: Legal expenses in uncontested divorces are typically lower, as lawyers are mainly involved in drafting the necessary legal documents.

4. Quicker Resolution: Uncontested divorces are generally resolved more quickly, often within a few months.

5. Less Emotional Strain: With fewer conflicts, uncontested divorces tend to be less emotionally challenging for all parties involved.

Real-Life Example:

Consider a couple in Alberta who have decided to separate amicably. They have no children, and they have agreed on the fair division of their shared assets. In this case, they can pursue an uncontested divorce, which allows them to part ways swiftly and without the need for contentious legal battles.

Contested vs. Uncontested Divorce: A Comparison

To provide a clear overview of the differences between contested and uncontested divorces, let’s break down the key distinctions in a table:

Aspect	Contested Divorce	Uncontested Divorce
Major Disagreements	Present	Absent
Court Involvement	Extensive	Minimal
Legal Costs	Bit High	Lower
Duration	Lengthy	Quick
Emotional Impact	Significant	Minimal

It is crucial to note that the decision to pursue a contested or uncontested divorce largely depends on the specific circumstances of each case. While uncontested divorces are generally less complicated and less expensive, they may not be suitable when there are significant disputes between the spouses.

Factors to Consider in Alberta Divorces

When contemplating divorce in Alberta, it’s essential to consider several factors, regardless of whether you are leaning towards a contested or uncontested divorce:

Legal Requirements:

1. Residency: To file for divorce in Alberta, at least one of the spouses must be a resident of the province for a minimum of one year before starting the divorce proceedings.

2. Grounds for Divorce: Alberta operates under a “no-fault” divorce system, meaning you do not need to prove fault or wrongdoing by your spouse to obtain a divorce. The only ground for divorce is the irretrievable breakdown of the marriage.

Child Custody and Support:

1. Custody Arrangements: In cases involving children, it is crucial to establish custody and access arrangements that are in the best interests of the child.

2. Child Support: Determine child support obligations, which are calculated based on the Federal Child Support Guidelines.

Property Division:

1. Matrimonial Property: Alberta law divides matrimonial property equitably, but not necessarily equally. Assets acquired during the marriage are subject to division.

2. Spousal Support: Spousal support may be awarded based on factors such as the length of the marriage, the financial circumstances of each spouse, and their ability to become self-sufficient.

Conclusion

In Alberta, whether you choose a contested or uncontested divorce largely depends on the level of agreement between you and your spouse. While uncontested divorces offer a more straightforward and cost-effective path, contested divorces become necessary when significant disputes are at play.

It’s essential to consult with a Kolinsky Law firm in Edmonton that specializes in family law to assess your specific situation and guide you through the divorce process. Ultimately, the goal should be to minimize the emotional strain, financial burden, and legal complexities that often accompany divorce, regardless of whether it is contested or uncontested.

As you navigate the intricate landscape of divorce, remember that seeking amicable solutions and open communication can contribute to a smoother and less painful separation process, potentially allowing both parties to move forward with their lives more positively.

What are grounds for full custody of child in Alberta

by admin | Apr 27, 2022 | Blog, Child Custody, Child Custody Lawyer

The parent-child bond creates a powerful connection that few people would let go of willingly. Although divorces and breakups are famous for inspiring disputes over money, an Edmonton family lawyer will tell you that the most emotional conflicts arise from child custody disputes. Although the law recognizes that children need a relationship with both parents and promotes shared parenting as the ideal, full custody remains an option when the circumstances demand it.

Only very narrowly defined circumstances provide grounds for a judge to restrict parental rights and award full or sole custody to one person. A parent or other guardian petitioning for full custody must prove that the other parent is unfit and cannot fulfill the best interests of the child.

Canadian Child Custody Terminology

When parents talk about child custody, they are often lumping together the legal concepts of parenting time and decision-making responsibility. These terms correspond to what people think of as physical custody and legal custody respectively. Updates to the Divorce Act in 2021 sought to clarify these terms.

Parenting time is time that a parent spends with a child. Co-parents might split the parenting time equally or set up a schedule that fits their lifestyle and the best interest of the child. Parenting time is the aspect of child custody that involves being with the child and providing physical care. The second aspect is decision-making responsibility.

The amount of parenting time someone has does not necessarily correlate with decision-making responsibility, which is the legal right to direct important elements of a child’s life. A parent with this right makes choices related to a child’s cultural and religious upbringing as well as education, health care, and other activities.

A parent who wants full custody, also known as sole custody, likely wants all parenting time and all decision-making responsibility. For sole custody, lawyers in Alberta to pursue such a request, they need to present convincing evidence about parental unfitness.

What Is an Unfit Parent in Alberta?

A judge may rule that a parent is unfit due to:

Abuse of alcohol or other drugs
Mental illness
Domestic abuse
Child abandonment or neglect

The Child, Youth and Family Enhancement Act of Alberta sets guidelines for identifying neglect.

Neglect occurs when a parent:

Fails to care for a child properly
Deprives a child in a social, cognitive, or physiological manner
Deprives a child of emotional support
Physically or sexually abuses a child
Leaves a child in a dangerous place
Deserts the child

Evidence about a dangerous environment or mistreatment could come from photographs, witness testimony, and police reports. A parent might obtain emergency child custody in Alberta on the basis of preliminary evidence. However, even if a judge grants an emergency custody order for only one parent, the final custody arrangement will not necessarily be the same. A court will take more time and care before making a final ruling on the matter.

A parent or guardian who needs to prove that another parent is unfit will likely want representation from the best child custody lawyer in Edmonton. These are complex cases, and courts are not eager to grant full custody unless a parent clearly threatens the best interests of a child.

full child custody

How Do I Get Full Custody of My Child in Alberta?

The best interest of the child always guides judicial decisions about child custody. A person seeking sole custody in Alberta must make the case that living with the other parent or allowing that person to make decisions about the child would harm the child or pose a direct danger.

Judges consider many factors when evaluating a child’s best interest. When addressing the question of parental fitness, a judge will think about:

Did the child have a relationship with the parent?
Can the parent meet the everyday physical and emotional needs of the child?
Can the parent provide a stable and secure home life?
Is there a history of domestic abuse or sexual abuse?
Does the parent live in the region?
Is there a history of addiction?
Is there evidence of a serious mental illness?
Is there a history of incarceration?
Will the parent cause physical or psychological harm to the child?
Will the parent expose the child to drugs or alcohol abuse?
Does the parent show interest in having child custody?

Can a Child Decide Which Parent to Live With in Alberta?

A court may consider the wishes of an older child but this does not necessarily influence the final decision. A court must evaluate the developmental stage and maturity of the child before factoring in the child’s opinion. Generally, courts do not want to put a child in a position of picking one parent over the other. However, a custody dispute that involves allegations of abuse, neglect, or parental substance abuse might require input from the child.

How to Gather Evidence That a Parent Is Unfit?

A parent who wants full custody likely already has some evidence of parental unfitness against the other party. To prepare a thorough case, a parent can contact at Kolinsky Law in Edmonton any time. The burden is on the parent to prove that the other parent should be restricted from contact with the children. A court may order an in-home child custody evaluation to assess the situation and provide a judge with a professional third-party opinion.

Evidence to support allegations against an unfit parent could come from many sources, such as:

Medical reports about child injuries
Arrest reports about the parent
Statements from teachers, childcare workers, relatives, or neighbors
Pictures of drugs or drug paraphernalia in the home
Pictures of bad living conditions
Medical testimony about a parent’s serious psychiatric condition

Talk to a Child Custody Lawyer in Edmonton

When your child’s safety is in peril, you cannot make compromises. Before believing that you cannot get full custody, get the opinion of a family lawyer at Kolinsky Law. We have experience handling complex and contentious child custody disputes. We can communicate your evidence effectively and promote your child’s best interests in court. For an accurate assessment of your parental rights, contact our office in Edmonton immediately.

Everything you need to know about changes to the Alberta divorce act in 2021

by admin | Jul 14, 2021 | Best Lawyers in Edmonton, Blog, Divorce and Separation, Divorce Attorney, Divorce Lawyer, Divorce Mediation

Divorces in Alberta, by their nature, are disruptive. When children are involved, family law has traditionally placed a priority on their physical and emotional needs due to the upheaval that they experience. The Divorce Act amendment that came into effect on March 1, 2021, elevates the best interests of the child. It also includes updated legal terminology, recognition of family violence, and addresses relocation issues.

As you consider ending your marriage, you should understand these changes to the Divorce Act. If you choose to go forward with a divorce, the new terminology and rules will impact the process. You may choose to consult an Edmonton Divorce Lawyer when you have questions about how the modernised Divorce Act could apply to your family situation.

What Is the Divorce Act?

The Divorce Act is national legislation originally passed by Parliament in 1968. It outlines laws concerning divorce, separation, and child custody and support. The act defines legal terms and rights and sets forth the process for dissolving a marriage. The Court of the Queen’s Bench of Alberta oversees divorces within the province in accordance with this federal law and other provincial family laws.

Why Was the Divorce Act Amended?

The amendments within section 12 of Bill C-78 address a variety of issues, but the primary purpose of the update was to increase the importance of the best interests of the child when making decisions around parenting time relocation. Although this principle has always held great legal importance, the amendment now directs courts to “only” consider the best interests of the child.

According to the Law Society of Alberta, other smaller changes in the amendment ease court burdens should an electronic hearing be needed or someone other than a parent needs to obtain or modify a contact order. New rules also apply to inter-jurisdictional applications.

Who Is Affected by the New Divorce Act Rules?

Anyone in Edmonton moving forward with a divorce after March 1, 2021, will follow the updated laws, terminology, and procedures as mandated by the amendment. If you already initiated a divorce before the effective date but have not yet received a final divorce order, then your divorce will move forward under the new laws.

Overview of Divorce Act Changes for Alberta Families

Because the amendment represents the first major overhaul of the Divorce Act in decades, it covers plenty of legal territory. For the most part, the changes fall into five major categories:

Legal terminology
Alternative dispute resolution
Best interests of the child factors
Family violence
Relocation

New Divorce Terminology

Lawmakers eliminated the old terms “access” and “custody” and replaced them with “parenting time” and “decision-making responsibility.” Sometimes the previous terms caused confusion, and the new legal language may help people more fully understand their rights and responsibilities during the divorce process.

What Is Parenting Time?

This term describes the time that a parent and child spend together. Parents have the right to determine the schedule for dividing their individual time with children as long as they agree and a court does not deem the schedule to interfere with the best interests of the child.

Generally, parents choose to split their parenting time on a mostly equal schedule or assign the bulk of parenting time to one parent while the other parent has the children less often. Many reasons could prompt a parent to choose limited parenting time, such as a need or desire to live in a different location or an inability to provide an acceptable home for children.

What Is Decision-Making Responsibility?

Decision-making responsibility is not determined by the amount of parenting time that you have. A parent who must travel for work and therefore cannot provide the primary parental household may still have full or partial decision-making responsibilities. These responsibilities encompass the right to make major decisions about a child’s life in regards to education, religion, cultural traditions, health care, and extracurricular activities. You may need the representation of a divorce lawyer to influence whether you have full decision-making responsibilities, partial control, or no input over decisions.

Alternative Dispute Resolution

The amendment promotes the goal of avoiding litigation whenever possible. Mediation, collaborative family law, co-parenting counselling, and arbitration are all forms of alternative dispute resolution. According to the amendment, a divorce lawyer should advise you of these options and encourage you to explore ADR whenever feasible. Negotiating divorce agreements privately could resolve problems faster than waiting for a court to issue a decision.

Factors Guiding the Determination of the Best Interests of the Child

Now that the best interests of the child are preeminent when making decisions in a divorce, the updated laws provide more guidance about the factors used to define the best interests of the child. Previously, federal and Alberta laws offered little guidance beyond valuing the physical, emotional, and psychological well-being of a child. The amended federal Divorce Act now lists certain factors. However, a court may consider any pertinent issues even if they are not specifically included in the amendment.

Influential factors:

Child’s needs according to age and developmental status
Child’s relationship with each parent
Parental willingness to have a relationship
Parental history of caring for the child
Child’s preferences considered in conjunction with child’s maturity level
Child’s heritage
Willingness and ability of parents to cooperate with caregiving
History of family violence

Family Violence

The original Divorce Act and previous amendments contained no language about family violence. The 2021 amendment now clearly defines family violence and requires judges to consider it when deciding on a contact order. Among other issues, a judge must weigh the frequency or pattern of violence, nature of violence, and it’s physical, emotional, or psychological impact on the child. The law specifies that the violence does not necessarily have to be inflicted directly on a child. Exposure to family violence represents an issue a judge should take into account. Additionally, conduct does not have to result in an actual criminal offence to qualify for consideration.

Relocation

After a divorce has been settled, occasions can arise when a parent wants or needs to move. Legal changes now obligate a parent with any decision-making authority or parenting time to inform the other parent of the desire to move in writing 60 days prior to the intended move. Court forms must be prepared. The other party may consent or dispute the relocation. If a court must decide the issue, the best interests of the child once again direct the outcome.

Updated Forms at the Court of the Queen’s Bench of Alberta

The changes to the Divorce Act have resulted in amendments to the Alberta Rules of Court. As of March 1, 2021, Alberta courts have updated their court forms to reflect the new procedures and terminology that now apply to divorces.

How Will the Changes Influence My Divorce in Alberta?

The changes to the Divorce Act will have the most bearing on parents who get divorced. The best interests of the child must be satisfied at every turn as parenting time, contact, and decision-making responsibilities are determined. If family violence is an issue in your case, the new law makes it much easier for a judge to recognise the seriousness of such events.

Every divorce revolves around factors and priorities unique to a family. Talking to a Divorce Lawyer in Edmonton, Alberta, can clarify your legal position and help you negotiate an acceptable outcome. You may even avoid the expense and delay of a courtroom battle through an enhanced legal emphasis on ADR.

At Kolinsky Law, you can access up-to-date legal advice as you navigate immediate and long-term decisions related to your divorce. Solutions to complex and distressing family problems can be found when we advocate for your rights. The changes to divorce law are meant to produce the best results for families. Contact Kolinsky Law today for crucial guidance about your divorce.

What does a child’s best interest standard mean in court

by admin | Mar 16, 2020 | Blog, Child Custody, Child Custody Lawyer

When a married couple decides to end their marriage, it inevitably impacts both parties. When a couple files for divorce, the parties that are impacted, with little or no say in the matter, are the children. This is where the courts step in to ensure that the children have a strong voice and that all matters are dealt with while keeping the best interests of the child in mind.

What Does ‘The Best Interest of the Child’ Mean?

The Family Law Act requires all decisions that involve children be made in the child’s ‘best interests’. In fact, all family laws are based on this principle. The question is, what does that mean? Simply put, decisions are to be made with the intention of having the best possible outcome for the child. The Family Law Act also, requires that judges and law enforcers ensure the safety of a child emotionally, physically and psychologically.

What Factors Do the Courts Consider?

At this point in time, the federal Divorce Act does not stipulate the exact factors for determining what is best for children. The reason for this is how unique each case actually is and the fact that listing factors does not increase the predictability of the outcomes in court. There are, however, many factors that are considered to determine the ‘best interest of the child,’ even if they are not formally outlined in the Act:

the child’s perspectives
the child’s own history
the child’s cultural, religious and spiritual upbringing
the benefit to the child by developing a strong relationship with both parents
the ability and willingness for the parents to care for the child
any family history of violence or abuse
any criminal proceedings

How Do Courts Determine the Children’s Perspectives?

Anything that a parent or court will decide can have a direct impact on a child. There are different ways some courts may use the input of the child in the legal proceedings to help assess their best interests. Depending on the child’s age and maturity, there is the possibility for them to be heard in any judicial or administrative proceedings which directly affect the child. This hinges on recognizing that children are not only capable of forming meaningful opinions on decisions that could alter their lives, they ought to be listened to by the powers which seek to protect their best interests. Of course, the opportunity for them to do this varies depending on the court and the province; however, the two most common options available are:

A child advocate or lawyer hired to represent the child
A child psychologist who interviews the child and prepares a report about their findings

How Kolinsky Law Can Help:

Family Law is one area of specialisation for the lawyers at Kolinsky Law. We specialise in all matters related to divorce including custody, child support, child protection, spousal support and more. We believe that children need their voices heard and we work to ensure that while the divorce process is difficult, the child’s best interests are put above all.

What’s the legal difference between annulment and divorce

by admin | Jan 8, 2020 | Annulment, Blog

There seems to be a lot of confusion regarding the difference between an annulment and a divorce in Alberta but the distinction is not as puzzling as it seems. If you find your marriage is over and you are looking at your options for legally ending it, depending on your circumstances, you may be eligible to annul the marriage immediately. In this article, we explore the differences between both, along with reasons for them. As always, we do suggest hiring a family/divorce lawyer to help you navigate all of the formalities of the legal system and explore the best options for you and your family.

What is a marriage annulment?

It is essentially a court order which states that your marriage either did not exist or was not valid. In an annulment, the marriage ends immediately once the court order has been issued. Consulting with an experienced family lawyer who has practiced in Alberta and is well-versed in the system here is your best option for discussing the possibility of an annulment versus a divorce. While an annulment may not always be granted, below are some of the circumstances that may qualify:

Second marriages: If your spouse was already married to another person when they entered into marriage with you, your marriage is not considered valid.
Duress: If you were forced to marry your spouse under threat of physical violence or under duress, you may qualify for an annulment as marriage must be entered into by consenting individuals.
Intoxication: If you were under the influence of alcohol or drugs at the time of your marriage ceremony, you may qualify for an annulment.
False Identity: If you thought you were marrying someone and they turned out to be a different person, the legal contract of marriage in which you entered with them is considered voidable.
Consummation: If your spouse is unable to consummate the marriage and you were unaware of this prior to the ceremony, you may qualify for an annulment.
Parental consent: If you were under the legal age of 18 when you got married and you did so without parental consent, an annulment order could be possible to obtain.
Kinship: If you and your spouse are too closely related, you may qualify for an annulment to void the marriage immediately.
Prerequisites: If your marriage ceremony did not include the essential requirements for Alberta, by law, such as having two witnesses, it is possible you could qualify for an annulment.

What is a religious annulment?

It is important to note that annulments granted by a religious institution are not the same as legal annulments. It is only valid within the religion itself – a legal marriage is otherwise considered to remain intact unless you access the appropriate legal channels to obtain a legal annulment from a judge or you get divorced. This is important, as well, in the case of spouses who religiously annul and then wish to remarry other people. Without a legal annulment or divorce of the first marriage, the second legal marriage will not be considered valid and is voidable.

What are my responsibilities after an annulment?

It does not mean that spouses are absolved of either their status as parents or that they cannot bring forth claims against one another as it pertains to property and support. Such claims can be brought forward about the following:

The division of property and assets
Spousal support
Child support or custody

It is also possible that, at the time of annulment, the court can issue orders pertaining to finances, property distribution and/or custody. Your best option, as mentioned above, is to enlist the services of a quality family lawyer to help make decisions about how to best end your marriage and assist you throughout that process.

Getting a lawyer for your family law needs

If you still don’t know whether pursuing a divorce or a marriage annulment is best for you, a family lawyer from Kolinsky Law can help you determine the best option for your circumstances. They will help you weigh the pros and cons of each option, always directing you to the very best choice for your particular circumstances. The family lawyers at Kolinsky Law know the Alberta system well and have years of experience in serving Albertan families. Call today to set up a consultation.

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