Huckvale LLP Provides service relation to all aspects of family law, including:
- Annulment, Separation and Divorce
- Spousal Maintenance
- Child Support
- Child Custody
- Visitation / Parenting Time
- Business and Property Valuation and Division
- Post-Divorce Matters
- Domestic Abuse Proceedings
- Pre-Marital and Post-Marital Agreements
- Change of Name
- International Matrimonial Issues
- Tax & Financial Planning
- Negotiation, Settlement & Trial of Disputes
- Review and Appeal
- Alternative Dispute Resolutions: Mediation, Collaborative Law
We encourage you to call one of our Family Law lawyers if you find yourself facing a situation which may be too complicated to resolve by yourself. You and the lawyer you choose will thoroughly review the problems and possible solutions. You will also jointly decide on which events will occur and you will be kept informed of all critical actions. Your lawyer will provide careful guidance every step of the way.
Family Law FAQ
There is no legal obligation to have a lawyer in order to obtain a divorce, however, parties are generally well advised to obtain legal advice when dealing with major life events, such as a divorce. Your lawyer can provide you with important information about your rights and obligations in an area of law which has become very complex and subject to significant change – which rights and obligations include issues relating to divorce, common-law relationship rights, division of property, child and spousal/common-law support, and custody and access issues. While it is certainly legally possible to obtain a divorce without legal counsel – you place yourself at risk of not fully protecting your own interests if you fail to obtain the advice of a lawyer practicing in the area of family law.
Contrary to some popular misconception – there is no ability to obtain a divorce without “grounds” as defined in the Divorce Act. Those grounds are: mental cruelty, physical cruelty, adultry, and one year separation.
If you wish to proceed with a Divorce based upon a one year separation, without alleging other grounds, you can file before you have been separated for a full year, seek interim assistance from a Court regarding support or parenting issues, and then wait to finalize your divorce until you have been separated for one full year.
It is also worth noting that the Divorce Act is not intended to discourage parties from trying to reconcile, and as such, if parties resume living together for less than 90 days during the period of their separation, their period of separation is not considered to be interrupted by reason of that separation.
Generally, spouses are free to divide their property as they see fit in what is called a “marital property agreement,” or “minutes of settlement” which is a contract between the husband and the wife that divides property and debts and resolves other issues of the divorce. Although many divorces begin with a high level of animosity, a substantial majority are settled without the need for a judge to decide property or other issues. However, if the division of property cannot be settled, then the court must make the determination in accordance with legislation in Alberta called the Matrimonial Property Act.
Under the Matrimonial Property Act, there is a presumption of equal distribution of net assets – although assets owned prior to the date of marriage, assets acquired by gift or inheritance, or assets acquired as a result of an insurance settlement or lawsuit not relating to loss of property may be exempt for sharing under the Act.
If the parents cannot agree on custody of their child, the courts decide custody based on “the best interests of the child.” Determining the child’s best interests involves many factors, no one of which is the most important factor.
Joint legal custody refers to both parents sharing the major decisions affecting the child, which can include school, health care and religious training. Other considerations under these types of custody agreements can include: extracurricular activities, summer camp, age for dating or getting a job, and methods of discipline. Joint legal custody, in an of itself does not, however, refer to who the child lives with – parties often having Joint legal custody with one parent having the actual or “de facto” primary care.
Joint legal custody is to be contrasted with Shared Custody, which refers to an actual sharing of time spent with each parent on a basis which amounts to or approaches an actual equal sharing of time with the child. In situations where the time spent with both parents will be divided equally, it helps if the parents live close to one another.
In 1996, the Canadian Government enacted the Child Support Guidelines, which are applied to every divorce, and which have also been adopted in Alberta under the Family Law Act. The Child Support Guidelines use tables that indicate a support amount for different ranges of income, similar to tax tables, which set a “base” amount of child support based upon the payor parent’s income. On top of that base amount, the parents can also be ordered to share (based upon their relative incomes) in certain “extra” expenses under Section 7 of the Guidelines, which expenses can include daycare, health insurance, medical expenses, or exceptional educational or activities expenses.
Usually, the parent without the child the majority of the time will pay support, but if both parents share time with the child equally, the parent with the greater income usually pays support.
If a parent is intentionally not working or is working at less than he or she is capable of earning, the court can “impute income,” which means setting support based upon what the parent is capable of earning rather than actual earnings. For more information regarding the Child Support Guidelines, see: http://canada.justice.gc.ca/en/ps/sup
In Alberta, a parent entitled to support is able to take steps to collect unpaid support themselves, with or without assistance of legal counsel, including seizing of assets, attaching wages or bank accounts.
Throughout Canada, and specifically in Alberta, there are enforcement agencies that will take steps to collect amounts owing to a parent, without charge to the parent for those services. In Alberta this is known as the Maintenance Enforcement Department. To register your order, or for more information, see: http://www.justice.gov.ab.ca/mep
In the event that the parent who is in default of their obligations, you should also be aware that the Alberta Maintenance Enforcement Office can often enforce through reciprocal or cooperative enforcement arrangements for all of the United States and other countries, including England, Australia, and Ireland.
If you are not able to come to agreement with your spouse, either on your own or through your lawyer, there are other ways to try and work out your differences without going to Court, known as types “Alternate Dispute Resolution” – the two most common being Mediation and Collaborative Law.
Mediation is where the parties, with or without their lawyers, hire a mediator who will meet with both parties, and assist them in identifying their issues and their interests in helping them find solutions to any areas in which they may not agree.
Collaborative Law, also known as Collaborative Practice, is a relatively new area of dispute resolution where the parties each hire a lawyer trained in Collaborative Practice who will meet with the parties in 4-way meetings to find solutions to their problems. These meetings take place under the structure of a contract signed by all parties and their lawyers, which requires the parties to treat each other with respect in an atmosphere of honesty and integrity. The contract also restricts the lawyers to limit their involvement only to the Collaborative process – such that if they cannot reach an agreement, the lawyers cannot continue to act if the matter then goes to Court. This focuses the lawyers and their clients on settlement, and has shown great success in helping parties avoid the unfortunate pain and delay often associated with the litigation process in Family Law.