Divorce

Going through a divorce or separation can be a very time-consuming and stressful period. Let us help you with your family legal matters. We offer a variety of services in Family/Divorce Law including: separation agreements; child support; custody arrangements (decision-making authority); access arrangements (parenting time); spousal support; property and debt division; and independent legal advice. 

1. Divorce vs. Separation

A divorce can only be granted by a court of competent jurisdiction, which in Alberta, is the Alberta Court of Queen’s Bench. To be granted, some conditions are required:

- That either of the parties reside in Alberta for at least one year;

- That at least one of the three grounds for divorce be involved: Separation for at least 1 year; adultery; and/or cruelty. 

- That reasonable arrangements have been made for the support of the children of the marriage, if applicable.

A separation occurs when people decide to end their relationship and begin to live apart.  However, separation will still be considered valid even if parties remain in the same house while living separate and apart. 

2. Uncontested/Contested Divorce and Joint Divorce

Uncontested divorce occurs when the parties consent to a divorce and its terms. This is usually achieved through a Separation Agreement. 

In the opposite, a contested divorce occurs when the parties cannot agree about getting divorced or its terms. In this case, the parties will need the help either of the court or an arbitrator, or a mediator for resolution.

Joint divorce is an uncontested divorce where both parties decide to apply together by making a joint application to the court.

3. Family Property Division

Family property includes all assets owned and certain debts incurred by the parties during the relationship.

As of January 1, 2020, the new changes of property division have become effective. Under Bill 28 - Family Statutes Amendment Act, property division will now apply to both married and unmarried couples. The unmarried couples however need to meet the requirement of an adult interdependent relationship. 

An adult interdependent relationship applies to people living together for at least 3 years; or living together for some permanence and less than 3 years if they have a child; or when the parties entered an adult interdependent agreement. 

4. Financial Disclosure

The Alberta Rules of Court requests that parties must provide and exchange their financial information. A list of documents required is included in the Notice to Disclose Application posted on the website of the Alberta Court of Queen’s Bench – Family Law forms. 

For self-employed disclosure, the Alberta Court of Appeal in Cunningham v. Seveny, 2017 ABCA 4, stated that self-employed individuals bear the burden of proof to demonstrate that certain business expense deductions such as vehicles, computers, cellphones, travel, and entertainment expenses are reasonable for the purposes of calculating income for child support. In some cases, an accounting expert will be necessary for the review of a business’s financial statements.

5. Spousal/Partner Support

Spousal or partner support is financial support to the other spouse or partner following the end of the relationship. Spousal support can be paid on a monthly basis, or as a lump sum.

Partner support for common law partners is regulated by provincial legislation. In Alberta, the Family Law Act, and Adult Interdependent Relationships Act.

a. Purposes of Support:

The main purposes for spousal support are set in the Divorce Act as follows:

• To compensate a spouse who sacrifices his or her ability to earn income during the marriage;
• To compensate a spouse for the ongoing care of children, over and above any child support obligation; or,
• To help a spouse in financial need arising from the breakdown of the marriage.

However, the above does not remove the obligation of the recipient to become self-sufficient within a reasonable time where possible.

b. Factors to Grant Support:

There are many factors considered by judges while determining whether spousal support should be paid. The most common are:

• The financial means, needs, and circumstances of both spouses;
• The length of time the spouses have lived together;
• The roles of each spouse during their marriage;
• The effect of those roles and the breakdown of the marriage on both spouses' current      financial positions;
• The ongoing responsibilities for care of the children, if any; and
• Any previous orders, agreements, or arrangements already made about spousal support.

c. Calculation of spousal support

The Spousal Support Advisory Guidelines are used for the calculation of spousal support. However, the calculation is very complex. It is very important to consult a family lawyer.

6. What is Independent Legal Advice?

When separated parties have reached an agreement settling the issues of property, and parenting and support in situations where the parties have children, they can enter into a Separation Agreement.  In order to ensure the validity of the Agreement, both parties must obtain their own Independent Legal Advice.  This ensures that each party has been advised of their respective rights, and the implications and responsibilities that arise from the agreement.  The Independent Legal Advice must be given to each spouse by a different lawyer "independent" of the other party.  If you reach an agreement with the other party, they may retain a lawyer to draft the Separation Agreement.  Even if you agree with the terms of the Agreement, you must retain your own lawyer to execute the Agreement with you and provide you with the Independent Legal Advice accordingly.