Family Lawyers Advocating For You

You are required to go through a court process to obtain a divorce. Section 8 of the Divorce Act states that you may obtain a divorce if there has been a breakdown of the marriage. Getting a divorce requires one of the following: 

1. You and your spouse have been separated for a period of one year.
2. One spouse has proof that adultery occurred or adultery is admitted.
3. One spouse has proof that cruelty occurred or cruelty is admitted. 

In regards to conditions 2 and 3, married individuals do not have to wait a year before obtaining a divorce; however, due to the requirement to prove the claims and the time necessary to resolve any issues of parenting, spousal, and child support that are typically required before a divorce is granted, most people rely on the first grounds. 

Division of Family Property is not required to get a divorce, but for most married couples, it is a significant part of the process of separation.

Spousal support is a complex consideration for the Court. Although there are Spousal Support Advisory Guidelines, they are not legislated and are not binding on the court. The guidelines are, therefore, different from the binding Child Support Guidelines. Spousal support varies greatly on the specific facts of the case and is highly discretionary. That means that the Court decides.

A person may be entitled to spousal support after a divorce or after the breakdown in a common-law relationship (if they qualify as an Adult independent Partner AIP). To establish if there is an entitlement, the court looks at many factors, including the age of parties, duration of marriage/ cohabitation, care of children, educational backgrounds, roles/functions adopted by the parties during the marriage/ cohabitation, and relocation issues. Other factors can also include health issues, inability to work, and length of time it may take to regain economic sufficiency. 

Spousal support agreements can be negotiated, agreed upon and filed with the Court. If an agreement cannot be reached, then a claim can be brought. When a claim for spousal support is sought, there may be an interim support order before a final determination order. An interim support order focuses on the resources required to keep the spouse in the lifestyle established during the marriage/cohabitation. A final determination may focus on compensatory elements, and the duration will be assessed at this stage.

How much spousal support and how long support is required is dependent on your specific circumstances. Again, the spousal support is discretionary. Often, the Court will want to consider how other courts have applied their discretion in similar cases. This is where legal research and case authority will be very important.

All couples need to determine how to divide any property that was acquired before, during and after a relationship. This applies to all couples, whether they are married, Adult Interdependent Partners, or unmarried couples who do not meet the criteria to be Adult Interdependent Partners. 

Property includes your assets, belongings, and debts. By default, the date to divide property is the date of trial or the date an agreement is signed. This means you will need to keep track of and disclose any property acquired after the date of separation. The parties can agree to a date to divide the property if they wish. It is usually a significant date, such as the date of separation or the date at which one party moved out of the family home. 

Adult Interdependent Partners and unmarried couples have two years from the date of separation to make a claim for the division of family property. Married couples have two years from the date of the divorce judgment. 

Alberta’s Family Property Act applies to spouses and adult interdependent partners who separated on or after January 1, 2020.

If you are an unmarried couple who does not meet the criteria of being Adult Interdependent Partners, you can still choose to divide property by agreement in accordance with the Family Property Act. If there is no agreement, the property is divided using general property principles. Typically, this means that whoever purchased the property retains that property, however, the principle of unjust enrichment also applies.

For Adult Interdependent Partners and married couples, property division occurs in accordance with the Family Property Act. The default is an equitable division of property acquired during the relationship, including any increase in value of property acquired prior to the relationship, but there may be certain exemptions or reasons why an equitable division is not appropriate. 

There are detailed resources available to determine the quantity of base child support. The Federal Child Support Guidelines is set for married couples, and the Alberta Child Support Guidelines is set for unmarried couples. These guidelines have tables, and they explain how to use the tables. There are things like “extraordinary expenses” that can be claimed under Section 7 of the guidelines. A careful read of this section will define the meaning of extraordinary, which may include childcare, medical, dental and educational expenses. These amounts are usually paid proportionately based on the income of the parties. 

The application is quite simple for child support. However, if the other party has complex finances, you may want a lawyer to assist in the collection of financial information to ensure that you are utilizing the tables correctly. Generally, if child support is the only matter in play, and the party has a straightforward income, then likely there are enough resources that you could complete the application without retaining a lawyer. 

If you are having difficulty with receiving your child support, you may want to register with the Maintenance Enforcement Program. This program has the authority to garnish wages, divert tax refunds, and penalize for non-payment. The penalties could include revocation of driver’s licence or passport, or they could be charged a fine.