Going through a breakdown of a relationship can be a stressful time for everyone involved. Let us help you with your family legal matters. We offer a variety of services in Family Law including: Family agreements, child support, custody (decision-making authority), access (parenting time), adoption, property and debt division.
1. What is the difference between the Family Law Act and the Divorce Act?
The Family Law Act is a provincial legislation in Alberta that applies to couples with children who are (or were) legally married, or in an adult interdependent relationship. Issues pertaining to this Act include guardianship, parenting, contact, child support, and partner support. The Provincial Court hears most matters under the Family Law Act (2003), although some matters can be heard in the Court of Queen’s Bench. The Provincial Court is the lowest level of court and has 72 locations spread throughout Alberta. This court is usually less expensive and easier to navigate for self-represented individuals (also referred to as “pro se litigants”).
The Divorce Act (1985) is federal legislation that only applies to couples who are married. This Act covers divorce, child support, parenting time, decision-making responsibilities, and spousal support. These matters are heard in the Court of Queen’s Bench.
2. What to do in case of separation?
Every situation is different. The most advisable thing to do remains to seek legal advice.
However, in situation of abuse or threats, you may want to get a protection order against your partner. At the same time, you may have to apply for interim orders where applicable.
If children are involved, you will need a Parenting Order setting out the terms of decision-making responsibility and parenting time. An exclusive possession of the matrimonial home and a preservation order may also be necessary where all conditions are met.
3. What is Decision-Making Responsibility (formerly referred to as "custody")?
The Divorce Act (1985) was recently amended, with changes coming into force on March 1, 2021. Whereas the term "custody" used to be a common term, the changes to the Divorce Act repealed the usage of that term, and have replaced it with "Decision-Making Responsibility". The Provincial Court of Alberta has encouraged the usage of these terms moving forward. The Divorce Act defines this to mean the responsibility for making significant decisions about a child's well-being, including the child's health; education; culture, language, religion and spirituality; and significant extra curricular activities.
In Alberta, joint/shared decision-making responsibility is most common. However, the Court may allocate the areas of decision-making in a variety of ways. For example, both parents may have decision-making authority in health, while one parent has decision-making authority in religion and spirituality, and the other has the authority to make decisions regarding education. The Court recognizes that each family's situation is different, and the best interests of each child is always taken into consideration.
Sole decision-making responsibility is the case where only one parent (referred to as the “primary parent”), has day-to-day care and control of the child, and is able to make all daily and major decisions. Although the parent with sole decision-making responsibility is granted the ability to make all the decisions, the other parent usually continues to maintain some form of parenting time with the child.
4. What is Parenting Time (formerly referred to as "access")?
With the changes to the Divorce Act as of March 1, 2021, the term "access" is no longer common, and instead the terminology is "parenting time"). Parenting time includes visitation rights and refers to the parent who does not have primary residency privileges spending time with the child. As affirmed in Richardson v. Richardson (1987), it is the child who has the right to access. This means that children have the right to have a full relationship with both parents as well as extended families, even in situations where the parents have a bitter relationship between them. If one parent repeatedly denies parenting time to the other parent, they can be held in contempt of court or have their decision-making and parenting time arrangements changed. This not only refers to time being spent with the child, but also to having the right to question and be given information about the child in regards to well-being, whether from doctors, teachers, tutors, and so on. However, with respect to major decisions, a parent without decision-making authority does not normally have the ability to weigh in.
A shared-parenting arrangement is when each parent spends an almost equal amount with the child. This is usually 50/50 or 60/40. This will typically change the way child support is calculated, as there is not a typical "primary parent" in this case.
If an individual is not designated as a guardian (see below), then their time with the child is referred to as "contact".
5. What is guardianship?
A guardian is someone who is responsible for the care, maintenance, and well-being of a child. Usually both parents are guardians. There are two types of guardianship: parental guardianship and court-appointed guardianship. Unless there is a Court Order limiting the powers of a guardian, joint decision-making power is given to the parents who have the right of guardianship. Therefore, decisions about issues such as healthcare and education can be made together.
6. What is a Contact Order?
The time spent between a child and a person who is not a guardian is referred to as “contact”. This person does not have the ability to make major decisions for the child. Before making an application for contact, the person who is not a guardian but wants to spend time with the child must first ask permission (otherwise known as “leave”) of the court to make the application. Grandparents are exempt from being required to ask for leave, however, they must still apply to the court for contact. In-person visits, phone calls, letters, emails, and other forms of communication are all outlined in the Contact Order. However, the Court Order doesn’t set out any responsibilities nor rights over the child.
7. Parenting Agreement vs. Parenting Order?
The parenting agreement is a written contract describing where the children will live, how they will be cared for by the guardians, and how decisions will be made. Although this can save money, time, and stress, it is still recommended for each guardian to seek independent legal advice before signing an agreement. It can be filed with the court as a Consent Order; and therefore gives the court power to enforce it if any problems arise in the future.
A judge will issue a Parenting Order when guardians are not able to reach an agreement. This can be expensive, time consuming, and stressful, however, it is in a guardian’s best interest to go to court if there is a history of family violence, concern about the child’s safety, intimidation, or if one guardian is preventing the other from seeing the child. If a guardian does not follow the Parenting Order, a judge can issue an Order to enforce it, give extra time with the children to one guardian, give financial penalties for denying parenting time, and can even give a prison term.
8. What is a Child Support Order?
A Child Support Order is a decision imposing contribution towards the financial care of the child. In Alberta, retroactive child support payments can be claimed back to three years. Financial disclosure is required in order to determine the monthly amount of support.
9. What are section 7 extraordinary expenses?
A Child Support Order can also includes section 7 extraordinary expenses which are additional to child support payments. These include child care expenses, medical and dental premiums, health related expenses that exceeds insurance reimbursement by at least $100 annually, extraordinary expenses for primary and secondary school, expenses for post-secondary education, and extraordinary expenses for extracurricular activities.
10. What to do after obtaining a Child Support Order?
The most reliable way to collect child support payments after the support order is granted is to register your order with MEP (Maintenance enforcement Program).
Please note that none of the information on this website should be construed as being legal advice or the law. These pages contain material that is meant only for informational purposes.