FAQs

If you are not married, you will need to determine whether you were in an Adult Interdependent Relationship. This is the legal term used in Alberta for what most people refer to as “common law” relationships. Common law is a valid legal term, as Canada uses it to define relationships for tax and benefit purposes. 

In Alberta, a person is in an Adult Interdependent Relationship if they meet any of the following criteria: 

1. They have signed an Adult Interdependent Partner Agreement (must occur if related by blood or adoption e.g. You live with a sibling and support each other).
2. They have lived together in a relationship of interdependence for at least three years.
3. They live together in a relationship of interdependence and have a child together, by birth or adoption. 

The term Relationship of Interdependence means that two people share one another’s lives, are emotionally committed to one another, and function as an economic and domestic unit. This does not have to be a romantic or sexual relationship and can occur between friends or relatives if the above criteria are met. 

There are several ways that an Adult Interdependent Relationship can end, but most often, it ends when: 

1. You have been separated for a period of one year, where one or both of you intend to end the relationship.
2. You sign a written agreement that the relationship has ended, and there is no possibility of reconciliation.

There is no requirement to go through a court process to end an Adult Interdependent Relationship. However, there may still be issues of parenting, child support, partner support, or division of family property that need to be resolved. These can be resolved by agreement or by applying to the court for an order. 

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. 

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.

There is no difference. In fact, the concept of sole custody has been modified under the amendments to the Divorce Act in March of 2021. In these amendments, Parliament removed the terms “custody” and “access” and replaced them with the terms “parenting order” and “contact”. Similarly, under the Family Law Act in Alberta, the terms used are now “parenting” and “contact orders”.

A parenting order may be granted on application only to either or both spouses or to a person other than a spouse who is a parent of the child, stands in place of a child, or intends to stand in place of a parent. The Court may grant a parenting order that determines “parenting time” and “decision-making responsibility” based on the best interest of the child. In the parenting order, the Court provides specific directions regarding the care of the child(ren). 

There is no presumption that equal parenting is in the best interest of the child. The Court considers a list of factors to determine the best interest of the child. One party can have much greater decision making power and greater parenting time. In some cases, full decision making power and full parenting time can be given to one individual for the duration of the order. These orders are akin to the old terminology of sole custody. Some orders will have shared decision-making and parenting time that is more akin to the old terminology of shared custody. 

These orders can be amended (varied) through application to the Court. The Divorce Act and Family Law Act have provisions that state that a person who has parenting time or decision-making responsibility or who has contact shall exercise that time in the best interest of the child. If that person is not acting in the best interest of the child, an application could be made to change the order. Further, if there is a material change in the circumstances of a party, an application can be brought to vary the parenting order.

There are detailed resources available to determine the quantity of base child support. The Federal Child Support Guidelines are set for married couples, and the Alberta Child Support Guidelines are 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.