Frequently Asked Family Law Questions
General Divorce FAQ
This is probably the number one question that we get asked.
While it is impossible to estimate what your divorce will cost without knowing your circumstances, it is fair to say that the bulk of the outlay will be the legal costs.
There are some nominal other costs to divorce but, in general, consider the following average legal costs in Alberta:
- Uncontested divorce: approximately $2,500
- Contested divorce: approximately $29,000
- The separation agreement: approximately $2,500
- Child support and custody: approximately $15,950
Contested divorces can be double, triple or more than this average cost but the above is useful as an indication.
In a contested divorce, the legal costs are paid by whichever party the judge names as responsible. There is no hard and fast rule.
This is another common question that is difficult to answer!
No lawyer can control the duration of a divorce. Many factors come into play but the main ones are:
- How quickly the spouses come to an agreement on the key matters such as property division, child custody, child support, spousal support, visitation rights, etc.
- Whether the divorce is contested or uncontested
- Whether they are prepared to go through mediation, arbitration, or collaboration
- If the divorce goes to trial
- Whether expert witnesses are required to testify
Until the judge signs the divorce order and your divorce certificate is issued, your divorce is not finalized. This can be as little as 8-12 weeks if things go smoothly or many months (even years) if they do not.
In Canada, adultery is one of the three grounds for divorce (along with cruelty and separation).
However, only in the province of Alberta is it possible to sue a spouse and his or her lover for adultery. The other provinces changed their laws in the 1970s.
So, the answer to this question is, surprisingly, yes!
Before and during a divorce, a father has the same parental rights as the mother.
If the divorce agreement stipulates joint custody of the children, then this will continue after the divorce. Both parents have equal rights to spend time with the children and to make decisions regarding their upbringing and moral guidance.
If the mother is awarded sole custody of the children, the father will generally be awarded access to the children and will only have the right to make decisions for the children when they are in his care.
The courts in Alberta prefer to grant joint custody of the children wherever possible. This is seen as beneficial for their upbringing.
Note that parents may have joint custody and the arrangement be deemed as “shared parenting”, even if the primary care of the children rests with one parent (primary care is when the children spend over 60 percent of the time with that parent).
The marital property is considered to be all of the following:
- Matrimonial home
- Most land or real estate attained during a marriage (with some notable exceptions)
- Bank accounts
- Stocks, deposits, and bonds
- Recreational property
The matrimonial property is distributed evenly between two divorcing partners in Alberta.
Any other property, such as items you owned before the marriage or received as a gift or inheritance from a third party are not subject to division.
However, any increase in value of that exempt property during the course of your marriage does need to be divided.
With long marriages, this can get complicated and the experience of a seasoned divorce lawyer will be invaluable.
Uncontested Divorce FAQ
An uncontested divorce is where a couple reaches agreements on all the key elements of the divorce agreement:
- Property division
- Child custody and visitation rights
- Child support
- Spousal support
- Any other matters
Arrangements involving children must be approved by the court but, with an uncontested divorce, no appearance before a judge may be necessary. Your divorce lawyer may be able to appear on your behalf.
This has significant advantages over a contested divorce, including:
- Lower costs
- Fewer delays – uncontested divorces can be completed in weeks rather than months
- Lower stress levels for the spouses
- Less anxiety for children
Contested Divorce FAQ
If you have not agreed to all the issues in a divorce, several options are available:
With mediation and arbitration, trained professionals are hired in an attempt to bring the divorcing parties to a settlement.
The main difference between the two is that a mediator (who may or may not be a lawyer) makes no decisions. It remains the responsibility of the spouses to make the final decisions.
With arbitration, both spouses agree to abide by the decisions of the arbitrator, who will assess the case independently and make a judgement based on his or her professional opinion.
With litigation, each spouse hires a lawyer to represent their case to the Family Court in Alberta and a judge will decide on all the outstanding issues of the contested divorce.
Collaborative Divorce FAQ
Mediation and collaboration can both be used where a divorce is contested and spouses are experiencing difficulties in reaching an agreement.
The main difference between mediation and a collaborative divorce is in the way an agreement is reached rather than the end result itself.
With mediation, a trained, independent mediator (who may or may not be an attorney) is hired to bring the couple to an agreement on the outstanding issues in the divorce agreement.
It is a cooperative approach where the final decision is in the hands of the spouses, who must decide what to do based on the guidance from the mediator. The mediator will then often draw up the required paperwork.
With a collaborative divorce, the end result may be the same. It is also a cooperative rather than an adversarial approach.
However, each spouse hires a lawyer to represent their interests. The lawyers then negotiate (in the presence of the spouses and other professionals, if necessary) and arrange the terms of the divorce based on each client’s best interests.
Both options can be preferable to litigation due to lower costs and stress levels, fewer delays, and the reduced potential for the divorce to negatively impact the children.
Note that if the two lawyers hired in a collaborative divorce fail to reach an agreement, the same lawyers are not permitted to represent you in the litigation stage of a divorce.
The collaborative process can be beneficial for divorcing partners who want to avoid litigation due to:
- Lower costs
- Less stress
- Fewer delays
- Less inconvenience
- Less likelihood of a detrimental effect on the children
Common Law FAQ
Common-law relationships in Alberta are now referred to as “adult interdependent partners” (AIPs).
If a couple is over the age of 16, has lived together for three years or more, or has a child and live together (but have not undergone a marriage ceremony and received a marriage certificate), it is considered a common-law relationship.
This is providing the relationship was not entered into with one party under duress.
While you may hear that the same fundamental rights are awarded those in common-law relationships as married couples, this is not entirely true.
There can be problems if a common-law relationship ends when matters such as property division, child custody, and child support are decided.
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 for a legal separation to take place, no official agreement is required.
To be divorced in Alberta, your marriage must have broken down and you need to have either:
- Been separated for 12 months
- Been treated with cruelty by your spouse, or
- Been the victim of adultery
In the absence of cruelty or adultery, the court will have to be satisfied that you have lived apart for a period of at least 12 months. This usually means residing at separate addresses but it is not a prerequisite (you can live apart at the same property).
Your divorce can proceed once the separation period is completed but will only be finalised when you receive the divorce certificate, pursuant to the judge signing the court order.
You must be separated for at least a year before filing for a divorce in Alberta, as in the rest of Canada.
Family Mediation FAQ
Family mediation is when spouses agree to hire a professional mediator to help them resolve the key undecided issues in the divorce.
Often, these are issues such as:
- Property division
- Child custody and parenting issues
- Child support
- Spousal support
The mediator (who may or may not be a lawyer) makes no decisions but attempts to lead the two parties to an amicable settlement.
However, it is important to note that the mediator makes no judgements. The two spouses remain in control of the final decision-making process.
Mediation is often the best option when couples are on good enough terms to be able to negotiate, not far apart in their expectations, and when they want to save the expense, stress, time, and inconvenience of a litigated divorce.
They may also want to avoid the harmful effects that a long, drawn-out, and adversarial court battle can have on the children.