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Areas of Divorce and Family Law
Division of Property
The general rule is that assets and debts accumulated, during a marriage and common-law relationship, are to be divided equally regardless of whose name the asset or debt is in. This general rule includes assets owned by a spouse through a Company or a Corporation.
There are exceptions to that general rule, a few of which are:
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assets acquired by way of a gift, specific to one partner, from a third party;
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assets acquired from an inheritance;
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assets and debts acquired before the relationship, and;
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an award or settlement for damages in favor of one partner.
In order to be fully exempt, the asset should be held in the name of only the spouse who wishes to claim it. Exemptions must also be traceable, in that the party who wishes to claim one of the above exceptions must generally be able to prove the exception to the other. Formal documentation, such as bank records, might serve as proof.
The information found on this website is intended only to give a brief, simplistic glimpse at a legal issue. There are exceptions to every general rule and each case is different, so it is important that you discuss your individual case with a lawyer.
Agreements
Spouses (either common-law or married) can enter into an agreement, at any time, in order to resolve the division of their assets and debts. This agreement should be in writing and each spouse will need to have a lawyer review and sign the agreement. Most cases are resolved, by way of an agreement, at some point in time. Very few cases go to trial to be resolved by the Court. It is usually (but not always, depending on the proposals being offered) in the best interest of both parties to resolve their disputes by agreement as soon as possible after separation. See tips on saving legal fees.
Prenuptial and Cohabitation agreements can be entered into prior to a marriage or, in the case of cohabitation agreements, during a relationship. These agreements have the benefit of determining the assets and debts of the parties while they still love one another and are able to enter into rational and reasonable arrangements.
The information found on this website is intended only to give a brief, simplistic glimpse at a legal issue. There are exceptions to every general rule and each case is different, so it is important that you discuss your individual case with a lawyer.
Spousal Support
Spousal support may be awarded in certain cases, in either a marriage or common-law relationship, to allow one spouse to be compensated for any economic disadvantage sustained during the relationship or to allow them to re-enter the job market to support financial self-sufficiency. Spousal support is discretionary and is decided on a case by case basis.
The information found on this website is intended only to give a brief, simplistic glimpse at a legal issue. There are exceptions to every general rule and each case is different, so it is important that you discuss your individual case with a lawyer.
Child Support
Child support is usually resolved pursuant to the Federal Child Support Guidelines. Generally, the parent who does not have the child/children living with them, for the majority of the time, pays child support to the parent with whom the child/children live(s). The Federal Child Support Guideline Tables are available on the internet. Child support is generally determined by taking the payer’s total income (from his or her most recent tax return) looking at the number of children and the payer’s province of residence, plugging that information into the Federal Child Support Guideline Tables and then looking at the result. This is called the basic amount of child support. For payers who are self-employed the calculation is usually more complex, as it is often more difficult to determine the income of the self-employed spouse.
In most cases, the parent with whom the children live the majority of the time, should receive the basic amount of child support from the other parent. In most circumstances, with the exception of shared parenting, the income of the parent who has the children living with them is not relevant to determine the basic amount of child support, nor is any income from a new spouse taken into account. With the exception of rare cases, for example: undue hardship cases, the Court has little discretion regarding the base amount of child support and the Court usually orders that the base amount of child support be paid.
The Court also considers such expenses as child care costs, extended medical and dental insurance premiums attributable to the child, uninsured health and dental expenses, extraordinary educational expenses, post-secondary educational expenses and extraordinary extracurricular expenses. The Court generally requires each parent to pay a share of these expenses, over and above paying the base amount of child support. The share that each parent pays is calculated in proportion to his or her income. In order to make this calculation, the incomes of both parents are relevant, regardless of where the children reside.
In cases of shared parenting, i.e. cases where each parent spends 40% or more of the time involved in caring for the children, the Court considers the incomes of both parents and most often the parent with the higher income will pay child support to the parent with the lower income.
The information found on this website is intended only to give a brief, simplistic glimpse at a legal issue. There are exceptions to every general rule and each case is different, so it is important that you discuss your individual case with a lawyer.
Parenting Time with Children
In determining parenting time with children the Court strives to make an Order that is in the best interest of the children.
Having time with both parents is considered to be a right of the child and the bond between a parent and a child is considered important for a child’s well-being. The Courts tend to be protective of the rights of parenting time with a child. It is rare to see this right denied altogether. The Courts go to great lengths to structure Orders in such a way to allow the child to see their parent and at the same time ensure that the child is protected. For example, if a parent has a problem with alcohol or drugs, the Court will likely order that parent not consume alcohol or drugs before or during the visit with the child, rather than simply prohibiting parenting time with the child altogether. The Court can also order that parenting time be supervised by a responsible third party, where this is necessary to protect a child. It is extremely rare to see parenting time completely denied.
The issues of child support and parenting time are not related in law. A parent can be required to pay child support, yet not see his (or her) child, if there are good reasons for this to occur, and a child will still be able to see their parent, yet the parent may not have to pay child support, if for example, their income is insufficient to pay child support.
The information found on this website is intended only to give a brief, simplistic glimpse at a legal issue. There are exceptions to every general rule and each case is different, so it is important that you discuss your individual case with a lawyer.
Rights of Grandparents
If a child, at any time, is not allowed to see a grandparent, the Court may make any order as it sees fit regarding the child’s right to see a grandparent. The Court takes into consideration the best interest of the child, the nature and extent of the child’s past association with the grandparent and the child’s views and wishes, if they can be reasonably ascertained.
The information found on this website is intended only to give a brief, simplistic glimpse at a legal issue. There are exceptions to every general rule and each case is different, so it is important that you discuss your individual case with a lawyer.
Mediation vs Litigation
Mediation is attempted in almost every case and is usually successful. Mediation has been touted in the past few years, as the best and least expensive way to resolve matters. This certainly can be true; however, people can also spend a great amount of money on legal fees mediating a matter. Emotions often play a big part in determining how long it takes for a case to be resolved. Often people experience a great deal of anger or guilt when they separate. A common problem in litigation and mediation is that people say something (or many things) which, as much as what is said might be true, is incredibly damaging to the other party. This tends to be somewhat more significant in litigation than mediation, as often the insult is in written form in litigation. Sometimes this is unavoidable, but the best advice generally is to not poke the bear. Doing so often results in prolonged, complicated, expensive litigation and mediation.
Litigation does not necessarily mean going to trial. There are ways of going to Court and having a Judge make decisions without a trial. For example, issues such as spousal support and child support can often be resolved in Court by way of a much simpler and less expensive legal process than a trial. Whether to continue to mediate or to start litigation is often a decision that has to be reached by both the client (as they likely know their spouse better than the lawyer does) and the lawyer (as the lawyer has the benefit of being objective and understanding the law). Once litigation is commenced, it can be very difficult to stop the war. The vast majority of cases are resolved at some point by way of mediation. Very few cases go all the way to trial. This is fortunate for clients as trials are extremely expensive.
If you are reading this, you have already likely had some thoughts about ending your relationship. Hopefully, you have put some thought into how you might accomplish that. It is helpful if you and your partner can have conversations, on a reasonable and peaceful basis, as to the ways you might resolve matters. Divorce does not have to be adversarial. The war can be taken out of divorce if you make the decision that you will not take that path. Many people when separating fail to understand that they, and they alone, steer the course and determine how forceful the waters become. Sometimes it does happen that one party becomes completely irrational and peaceful resolutions require a trial to resolve, but this fortunately is rare.
Please see 'tips for saving fees' to find out how to save money with your lawyer.
The information found on this website is intended only to give a brief, simplistic glimpse at a legal issue. There are exceptions to every general rule and each case is different, so it is important that you discuss your individual case with a lawyer.
STORY LAW OFFICE
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Address:
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Okotoks, Alberta, T1S 2C1