Family law deals with matters of significant impact upon individuals who share a domestic connection. Laws relating to family disputes have grown since the 1970s, and judges have both re-examined and re-defined legal relationships surrounding divorce, child custody, and child support. Many cases involve parties who are related by blood or marriage, but family law can also affect those in more distant relationships like relatives and grandparents. Because of the relationship aspect of family law, cases are often emotionally-charged and individuals are encouraged to seek legal counsel. Under Canada's Constitution, the federal, provincial, and territorial governments share responsibility for family law.
The majority of family law proceedings result from the termination of a romantic relationship or marriage. Family lawyers help their clients file for separation, alimony, or divorce. Issues like property division and child custody occur frequently at the end of a marriage, which is why it's advisable to have a lawyer like Scott who specializes in family matters.
Divorce & Separation -Regardless of whether a person views these two words as incredible or ludicrous, there are a couple of things a potential client should know: firstly, there's really no such thing as filing for legal separation in Canada. A person is legally separated as soon as he/she and their spouse are living 'separate and apart' because the relationship has broken down. Oftentimes, however, the term 'legal separation' is used to describe the contract that's created between the two spouses at the time of their separation. And secondly, there's no time limit to the separation, and a divorce will never automatically occur. In fact, a person can remain indefinitely separated from their spouse without ever filing for divorce—the only legal reason to obtain a divorce is if one partner wants to remarry.
In Canada, divorce is when a court officially ends a marriage. As noted above, there are no time limits to a separation, but if a person hopes to file for divorce, they must first complete a full one-year separation period. The purpose of this law is to give couples a chance to repair their relationships and find themselves again. The only exception to this rule is if the divorce is filed under the grounds of adultery or cruelty. If during the one-year separation period a person and their spouse get back together, this reconciliation won't affect the period unless the reconciliation equals more than ninety days. If this happens, a person will be required to begin a new full one-year period before a divorce can be granted.
In addition, a person separated from their spouse doesn't always mean that they must be living at different addresses. To be separated means to live separate lives. If a separate address isn't applicable, a couple may remain in the same residence, but the court will require proof they no longer lived as a couple. This can prove tricky, so legal representation is encouraged.
Please remember, divorce and separation can be intimidating, but Scott is here to help.
Common Law Relationsip - What is common-law? Canada defines it as two individuals who live together in a committed 'marriage-like' relationship. Despite the rise of common-law relationships in Canada, people often misunderstand the rights of living together outside of a marital relationship. Oftentimes, common-law couples are not entitled to the same rights as married ones.
To clarify: Alberta doesn't have common-law marriage. Courts have created a category of relationship called 'adult interdependent partnership.' An adult interdependent partner is someone living in a relationship of interdependence for at least three years, or a relationship of some permanence if there's a child involved. Another way to enter an adult interdependent partnership is by entering into a written adult interdependent partner agreement.
A minor can enter an adult interdependent partnership if the minor is sixteen-years old and the minor's guardians have signed the agreement with their consent.
Spousal / Partner Support - The Divorce Act, a federal law across Canada, sets out the spousal support rules for couples who divorce. Under this act, spousal support is likely to be paid when there's a big difference between the spouses' income after they separate. Judges consider multiple factors when deciding if support should be granted or not such as the length of marriage, the financial needs of both spouses, and the roles of each spouse during their marriage.
However, a court may decide that a spouse with the lower income isn't entitled to support if they possess assets or if the difference in income can't be traced to anything that happened during the relationship.
Provincial and territorial rules vary across Canada, so you are encouraged to check the website of your provincial Ministry of Justice for this information or you may contact someone like Scott.
Child Custody & Access - Custody and access refers to the parenting arrangements made for children when their parents are no longer together. Legal custody means someone who makes major decisions on issues involving the child such as religious upbringing, education, and medical choices.
Custody can also refer to where a child is living at any given time and is sometimes called physical custody. And although they often go together, shared and split custody are two different things. Split custody is when parents have two or more children together, and each parent has physical custody of one or more of those children for 60% of the time. Shared custody, on the other hand, is when one parent has the child living with them for at least 40% of the time over the course of a year. Both child custody and access are determined based on the particular circumstance and the best interests of the children.
When applying for a court order for your child, you must apply to the court closest to where the child is living. If you're unsure where and how to file the application, speak with a lawyer or court officer.
Matrimonial / Relationship Property - Now that the relationship is over, who gets what? As a general overview, the value of any property that a person acquired during their marriage and that they still have when they separate must be divided equally between spouses. Property that was brought into a person's marriage is theirs to keep, but any increases in the value of the property during the duration of the marriage must be shared.
Alberta's Matrimonial Property Act (MPA) provides rules on who gets to live in the home after marriage, who gets which property, and who gets to use the household goods. The MPA only applies to legally married spouses. When spouses cannot agree on how a property will be split, a judge will consider a number of things like: spousal contributions to the marriage, financial resources of both spouses, and length of the marriage. An application to divide property under the MPA can be made with another application like annulment or divorce. A person may fill out an application if they are separated but has not yet divorced, or if they have begun the divorce proceedings.
Shared Parenting - In the Family Law Act, 'parenting' is a term that applies when guardians don't live together. When guardians live together, they share the powers and responsibilities of the children, but when they live apart, they must come to terms with how the time with their children will be shared. In some cases, guardians are able to work things out with just a verbal agreement. Sometimes, though, parents want to formalize arrangements, so they will enter into a parenting agreement, which is a contract between the guardians that sets out how much time the children will spend with each of them and how decisions will be made.
The term 'shared parenting' refers to the collaborative arrangement in child custody in which both parents have the right and responsibility of being actively involved in the raising of the children.