Family Law addresses relationships between individuals within the ever-evolving entity known as the family. Our lawyers in this area oversee matters related to Divorces, Child Support, Separation Agreements, Restraining Orders, Custody and Access, Maintenance Variations, Matrimonial Property Claims, Dependent Adult Applications and Adoptions.
Team Members: Steve Andrew, Richard Der, Debbie Taylor, Betty Chan, Shauna Grenier

Frequently asked questions about Family Law:
What are my property rights when a common law relationship ends?
Do I lose my rights if I leave the home?
Can I reduce child and spousal support arrears?
Can I move the children out of the province?
What are my custody rights when my spouse and I separate?
How do I get a divorce?
How much child support will I have to pay?
How is property divided in a divorce?
What about grandparent access to the children?

What are my property rights when a common law relationship ends?

Generally speaking, property accumulated during a common-law relationship belongs to the party who paid for it and to whose name it is registered. There are exceptions to this General Rule, however, and you may want to contact one of our family lawyers to determine if your circumstances fit into these exceptions. Joint property purchased together and in joint names belongs to both parties and each are generally entitled to half the value of such property.

Do I lose my rights if I leave the home?

With respect to matrimonial property, you do not lose your ownership rights to such property if you choose to leave the matrimonial home. However, leaving the matrimonial home will make it difficult for you to get back in. With respect to children, leaving the matrimonial home without the children may adversely affect your claim for custody of the children. Contact us for more details on why your rights may be adversely affected.

Can I reduce child and spousal support arrears?

Child or spousal support arrears are unpaid child or spousal support payments pursuant to a Court Order or agreement. An application can be made to the Court to reduce child and spousal support arrears. Your chances of a reduction in arrears vary in each individual case. Generally speaking, you must establish three things before a reduction is even contemplated by the Court. These are:

• You were unable to make support payments when such came due;
• Present inability to pay such arrears; and
• It is unlikely that you will be able to payoff such arrears in the future.

Contact one of our family lawyers to review your case.

Can I move children out of the province?

Whether or not there is a current Court Order for custody in place, one party can challenge the other party who wishes to move out of the Province with the child. If challenged, the Court will determine if a move is appropriate based upon the best interest of the child. Contact us to discuss the steps required to facilitate or challenge a move.

What are my custody rights when my spouse and I separate?

The fundamental principle of the best interests of the child determines the issue of custody of the child between you and your spouse. Every case will be different and, as a result, different factors will be taken into account to assess the best interests of the child. You may want to contact one of our family lawyers to get an idea of how the Court might assess the best interests of your child in the context of your particular situation. Under the Divorce Act, the Court is also directed to give effect to another principle - the maximum contact principle - which parent would try to maximize the child's contact with the other if that is consistent with the child's best interests. Your willingness to facilitate your spouse's contact with the child is, therefore, an important factor that the Court will consider in making an order for custody. This is sometimes referred to as the Friendly Parent Rule.

How do I get a divorce?

The Court may only grant your divorce if there has been a breakdown of your marriage. The Divorce Act provides that a breakdown of your marriage is established only under one of three conditions. Where you are the one who starts the divorce action, these conditions are:

• You and your spouse have lived separate and apart for at least one year before the court determines the divorce and were living separate and apart at the time you commenced the divorce action;
• Your spouse has committed adultery during your marriage; and
• Your spouse has treated you with physical or mental cruelty during your marriage.

The law has interpreted each of these conditions in particular ways. For instance, it is possible for you and your spouse to be living separate and apart even though you both still reside in the same home. As a result, it may be prudent for you to consult one of our family lawyers to discuss your particular circumstances.

How much child support will I have to pay?

The amount of child support to be paid by parents is determined by the Federal Child Support Guidelines. According to the Guidelines, there is a basic "table amount" that the non-custodial parent will have to pay for the maintenance of the child. This basic table amount is determined by the number of children you and your spouse have and the amount of your income. You may also have to contribute a share of additional expenses related to your child such as child care or daycare expenses, health and dental insurance premiums and other health related expenses, extracurricular activities, and other expenses related to your child's school education. It is important to understand, however, that this is the general rule and, in certain cases, there will be exceptions to it. Consulting with one of our family lawyers could help you determine whether you fall under the general rule for child support and whether there may be any exceptions in your situation.

How is our property divided when my spouse and I are getting a divorce?

In Alberta, property division between married persons is governed by the Matrimonial Property Act. The general rule is that there is a presumption that all property acquired by the spouses during the marriage is subject to a 50-50 division between you and your spouse. The Act also sets out property which is exempt from this equal division. In other words, certain categories of property are exceptions to this rule and could include:

• gifts that you receive from a third party;
• an inheritance that you receive;
• the property you had before you were married;
• possibly money you get from a lawsuit in a tort action;
• possibly money you get from an insurance policy.

Please consult one of our family lawyers to fully understand how these exceptions apply and how they might work in your situation.

What about grandparent access to the children of a marriage?

A grandparent who would like to have access to their grandchildren can make an application to the Court for an access order under either the Divorce Act or under the Provincial Court Act. Whether grandparent access will be granted by the Court is, again, decided by reference to the best interests of the child. You may want to contact one of our family lawyers to get an idea of how the Court might assess the best interests of the child in the context of your particular situation.