Frequently Asked Family Law Questions
Calgary Divorce FAQ
A very common question but one that is tough to answer!
The cost of your divorce will depend on your circumstances. While there are some nominal charges for processing a divorce, the main outlay involved will be the legal costs.
These will vary greatly depending on the path you take as a couple: collaboration, mediation or litigation.
Following are some guidelines for divorces in Calgary:
- Uncontested divorce: approximately $1,740
- Contested divorce: approximately $23,730
Note that these are average costs. The cost of a contested divorce that lasts for many months can be considerably higher than this.
The duration of divorce proceedings depends on several factors. It is impossible to provide an estimate without knowing:
- How quickly you and your spouse agree on property division, child custody, child support, spousal support, visitation rights, etc.
- Whether mediation, arbitration, or collaboration will be involved
- Whether litigation is required
- Whether there are complicating factors that could extend a trial
It is possible for an uncontested divorce to pass through the family court system in Calgary in as little as 8-12 weeks if you have been separated for the mandatory 12-month minimum.
However, contested divorces may take many months or even years.
In Alberta, you can still sue your spouse and his or her lover for adultery. The other provinces and territories in Canada abandoned this law decades ago.
Adultery remains one of the three grounds for divorce in Canada. The other two are separation and cruelty.
Even if you have made decisions with your spouse about child custody, you have equal parental rights until the divorce is confirmed by the court.
The preference in Alberta’s courts is to grant joint custody of the children wherever possible. It is regarded as beneficial for the children’s upbringing and development.
If you agree on joint custody of the children, the equality of parental rights will continue after the divorce.
This means that both the mother and father have the right to make decisions regarding the upbringing and moral guidance of the children.
However, if sole custody of the children is awarded to the mother, the father will be awarded access to the children and will have the right to make decisions on behalf of the children when they are in his care.
Often, parents have joint custody in a “shared parenting” arrangement, even if the children primarily spend time with one parent.
Property division is one of the key components of a divorce agreement. It is also one of the areas that causes most disputes.
Marriages of long duration, where significant assets have been accumulated, can become very complex and these are more likely to end up in court.
Marital property includes the following:
- The marital home
- Land or real estate acquired during the marriage (there are some exceptions)
- Motor vehicles
- Bank accounts
- Stocks, deposits, and bonds
- Jewelry or other valuables
Marital property in a Calgary divorce is distributed evenly between the two divorcing partners.
Any property owned before the marriage or received as a gift or inheritance from a third party does not need to be divided – but if it increases in value, the increase is subject to division.
Uncontested Divorce FAQ
An uncontested divorce is usually a result of there being no disagreements between two separating spouses.
If there are disagreements involving key issues like child custody and support, division of marital property or spousal support (or issues such as cruelty or abuse) an uncontested divorce is inadvisable as you may have regrets in the future.
Mediation or a collaborative settlement is best in these circumstances. If that is not possible, litigation may be required.
Contested Divorce FAQ
Contested divorces can be costly, take longer to settle, and involve considerable stress for the spouses and children from the marriage.
In general, if you agree on most of the key issues of a divorce agreement and want to avoid expense, stress, and delays, a contested divorce may be inadvisable.
Common Law FAQ
If you have entered into a common-law marriage, it helps to be clear on what your rights are. It also helps to dispel a few of the myths about what happens if you separate or divorce:
- The laws are the same Canada-wide
Common-law partnerships are regulated by the individual provinces in Canada. So, while common-law partners in B.C are granted the same fundamental rights as married couples after living together for two years, the same does not apply in all provinces.
In Quebec, common-law partnerships are not recognized at all – though if there are children in the relationship, this usually affects the legal standing of the partnership.
In Alberta, common-law partners are termed “adult interdependent partners”. When a couple has lived together for at least three years or has a child and live together, it is regarded as a common-law relationship.
- Common-law partnership assets are divided equally in a separation
Property acquired during a common-law partnership is not necessarily subject to equal division in Alberta as it would be in a marriage.
If you have been living together as adult interdependent partners for three years or there are children from the partnership, assets may be divided equally during a separation.
Also, if there is a separate cohabitation agreement or another legal agreement between the couple, this can affect property division.
- Spousal support cannot be awarded in a common-law partnership breakup
Few separating couples engaged in a common-law relationship will address spousal support but in some cases, it may be necessary.
Spousal support may be recommended if the breakup of a long-standing relationship results in “economic consequences” for one partner – the same as a married spouse would receive support in this situation.
There are some significant differences between marriage and common-law relationships in Alberta.
Following are the major differences:
- For marriage, you must generally be over the age of 18 but you can enter into a common-law relationship from the age of 16 if you have written consent from a guardian.
- In a marriage, a couple needs to apply for and obtain a marriage license and then go through a legal ceremony. With a common-law relationship, there is no ceremony or license.
- In a marriage, partners may not be related to each other but in a common-law relationship, this is possible.
- Marriage is recognized by the courts in Alberta as soon as the ceremony is completed but with a common-law partnership, the two individuals must have lived together for at least three years or have children to be recognized by the courts as adult independent partners.
- In a marriage, the marital property must be divided equally, whereas in a common-law relationship this may not be the case – though the division must still generally be “fair”.
Separation Mediation FAQ
In order to make a separation legal in Canada, you must live apart from your spouse to prove that the marriage has broken down.
This usually means living at a separate address but it is not a prerequisite.
It is possible to live in the same property but sleep apart, eat separately, lead separate social lives, and act as a separated couple.
No legal document is required to prove that you are separated and there are no official court proceedings until the divorce.
However, some couples prefer to draw up a legal separation agreement. This is a written document drafted by the spouses or their lawyers detailing what the two parties agree to during the separation period.
It is best to consult with a lawyer to ensure that the agreement is valid and properly executed.
If a wife is dependent upon her husband for financial support, it would be standard practice for the husband to support the wife during a separation period until the matter of spousal support is decided and the divorce is granted.
A separation agreement can detail this arrangement. Make sure that it is drawn up by a competent lawyer so that it is a valid legal document that can be enforced by the family court in Alberta.
The support paid during separation may be a model for spousal support payable after the divorce is granted.
Separation mediation is designed to bring two separating spouses to an agreement that both accept in preparation for an upcoming divorce.
The mediation process is managed by a professional mediator, who is often called in to settle the major issues in a divorce agreement, including:
- Property division
- Child custody and parental rights
- Child support
- Spousal support
To prepare for this, you can start taking steps to make the process as smooth as possible:
- Make lists of all marital property
- Consider all income you receive as a couple
- Consider any outstanding debts
- Detail all expenses for the household
- Detail expenses involved in raising the children
- Start to consider schooling, health arrangements and other needs of the children
These details will be useful in making the key decisions and, if you are unable to settle your differences through a mediator, they can be passed on to your lawyers for the collaboration or litigation process.
Family mediation is a good option where couples who do not agree on the specific terms of the divorce retain a good enough relationship to be able to discuss the issues with professional guidance.
It works best when the two spouses are committed to reaching an amicable agreement and want to avoid the expense and/or stress of a litigated divorce.
This is especially the case when children are involved and it is an emotional time for the entire family.
Family mediation is a voluntary process that is an alternative to collaborative divorce or litigation (both of which involve lawyers).
Both spouses must agree to work towards an agreeable settlement with the aid of a professional mediator and be committed to the process.
Collaborative Divorce FAQ
A collaborative divorce is often a better solution for marriages where children are involved.
When there are disputes and parents do not see eye to eye about the main issues, the collaboration process between lawyers can shield the children from unnecessary stress involved in courtroom litigation, which often becomes adversarial.
Collaboration can also ensure that the parents remain on amicable terms, which is better for the children as they continue their lives in the care of parents who live apart.